Byron Vaughn v. The State of Texas--Appeal from 124th District Court of Gregg County

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
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No. 06-06-00055-CR
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BYRON VAUGHN, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 124th Judicial District Court
Gregg County, Texas
Trial Court No. 32905-B
Before Morriss, C.J., Carter and Moseley, JJ.
Memorandum Opinion by Justice Carter
MEMORANDUM OPINION

Byron Vaughn appeals from his conviction for injury to a child, enhanced by prior felony convictions. The jury found Vaughn guilty of injury to S.B. and assessed punishment at thirty-five years' imprisonment. The trial court sentenced Vaughn consistent with the jury's verdict. On appeal, Vaughn argues the trial court erred by denying Vaughn's request for an instruction on defense of a third person and by failing to require the State to elect one of the two counts alleged in the indictment.

The charges in this case result from injuries sustained by S.B., who was thirteen at the time, when she attempted to defend her aunt, Melinda Williams, from Vaughn. Vaughn was Williams' boyfriend and resided with Williams. (1) Vaughn's daughter, who was approximately four or five years old at the time, and several other children (Williams' children and two of Williams' nieces) were arguing over the television. In addition, one of Williams' children had eaten some of Vaughn's daughter's cookies. When Vaughn's daughter complained to Vaughn that the other children were picking on her, Vaughn and Williams got into an argument, which escalated to a physical altercation in the kitchen. S.B. testified that, when she entered the kitchen,Williams was pinned against the wall and Vaughn had his hands around Williams' throat. S.B. testified that, out of concern for her aunt's safety, she hit Vaughn in the back of the head. According to S.B., Vaughn pinned her to the floor and started hitting her in the mouth. S.B.'s lip was cut and bled profusely.

Vaughn testified to a slightly different version of the events. According to Vaughn, he and Williams got into an argument and he "put his hand in [Williams'] face." At this point, S.B. jumped on Vaughn's back and both Vaughn and S.B. fell to the ground. Vaughn testified he observed Williams' daughter "going for [his] daughter" and picked up his daughter. After Vaughn picked up his daughter, Vaughn testified that Williams, Williams' oldest daughter, and S.B. started kicking and hitting him. Vaughn testified he merely covered his daughter up and denied ever hitting S.B.

I. Vaughn Was Not Entitled to an Instruction on Defense of a Third Person

In his first point of error, Vaughn claims the trial court erred in denying his request for an instruction on defense of a third person. According to Vaughn, there was some evidence at trial which raised a plausible claim of defense of a third party, his daughter. Vaughn argues it is the most basic instinct for a parent to protect his or her child and that his protection of his daughter was not an unreasonable action.

The State argues that this issue is not preserved for our review. If there is error, whether error was preserved determines the harm analysis we must conduct. See Almanza v. State, 686 S.W.2d 157, 172 (Tex. Crim. App. 1984) (op. on reh'g); Grider v. State, 139 S.W.3d 37, 38-39 (Tex. App.--Texarkana 2004, no pet.). At trial, the defense requested an instruction on self-defense. The trial court and the parties then briefly discussed the issue. According to the State, the defense's request is inadequate to raise the issue of defense of a third person. It is not necessary for us to decide this issue because the trial court did not err in denying the instruction.

A person is justified in using force against another when and to the degree he or she reasonably believes the force is immediately necessary to protect a third person against the assailant's use or attempted use of unlawful force. See Tex. Pen. Code Ann. 9.33 (Vernon 2003); see also Tex. Pen. Code Ann. 9.31 (Vernon 2003). A defendant has the burden of producing some evidence to support a claim of self-defense. Zuliani v. State, 97 S.W.3d 589, 594 (Tex. Crim. App. 2003). Once the defendant produces such evidence, the State then bears the burden of persuasion to disprove the raised defense. Id. The burden of persuasion is not one that requires the production of evidence; rather, the State need only prove its case beyond a reasonable doubt. Id. When a fact-finder determines that the defendant is guilty, there is an implicit finding against the defensive theory. Id.

In determining whether the court erred by refusing the instruction, we must determine whether there is evidence to justify giving the instruction to the jury. If the evidence raises the issue, the defendant is entitled to have this issue submitted to the jury. Riddle v. State, 888 S.W.2d 1, 6 (Tex. Crim. App. 1994). "[A]n accused has the right to an instruction on any defensive issue raised by the evidence, whether that evidence is weak or strong, unimpeached or contradicted, and regardless of what the trial court may or may not think about the credibility of the defense." Hamel v. State, 916 S.W.2d 491, 493 (Tex. Crim. App. 1996). A defendant's testimony alone may be sufficient to raise a defensive issue. Hayes v. State, 728 S.W.2d 804, 807 (Tex. Crim. App. 1987); Rodriguez v. State, 544 S.W.2d 382, 383 (Tex. Crim. App. 1976).

However, to raise the issue of defense of a third person, the defendant must first admit, or substantially admit, "committing the conduct which forms the basis of the indictment; the defense is inconsistent with a denial of the conduct." See East v. State, 76 S.W.3d 736, 738 (Tex. App.--Waco 2002, no pet.); see also Young v. State, 991 S.W.2d 835, 838 (Tex. Crim. App. 1999); Kimbrough v. State, 959 S.W.2d 634, 640 (Tex. App.--Houston [1st Dist.] 1995, pet. ref'd). While the defendant need not admit the commission of every statutory element of the offense, he or she must admit committing the conduct giving rise to the indictment. See Jackson v. State, 110 S.W.3d 626, 631 (Tex. App.--Houston [14th Dist.] 2003, pet. ref'd). Because Vaughn affirmatively denied ever hitting S.B., the evidence failed to raise the issue. The trial court did not err in denying the defense request for an instruction on defense of a third person. We overrule Vaughn's first point of error.

II. The State Was Not Required to Elect on Which Count to Proceed

Vaughn argues, in his second point of error, that the trial court erred in failing to require the State to elect one of the two counts alleged in the indictment. The indictment provides, in pertinent part, as follows :

BYRON DENELL VAUGHN, hereinafter called DEFENDANT, did then and there

Paragraph A

intentionally or knowingly cause bodily injury to [S.B.], a child 14 years of age or younger, by hitting or striking the said [S.B.] with the hands or fists of the defendant,

Paragraph B

. . . recklessly cause bodily injury to [S.B.], a child 14 years of age or younger, by hitting or striking [S.B.] with the hands or fists of the defendant . . . .

 

According to Vaughn, the trial court's refusal to require the State to elect resulted in harm as evidenced by a note returned by the jury. The note reflects there was a split among the jurors as to guilt on each count. The trial court instructed the jury that the verdict must be unanimous, and the jury ultimately returned a finding of guilt on Paragraph A. Vaughn's argument fails for two reasons: (1) there was no timely and proper request for an election, and (2) the State was not required to elect. According to Vaughn, the defense moved to require the State to elect a count to submit to the jury for a verdict. The trial court overruled the defense motion. While defense counsel did use the word "elect," it is apparent from the context that defense counsel was not requesting the State to elect between the two counts in the indictment. While discussing the proposed charge, the following colloquy occurred:

[The Court]: . . . I've included an instruction on other acts. Basically, I was looking at that as to the potential testimony of assault family violence on [Williams], and I have prefaced that on how the jury can consider it either through motive, intent, preparation, knowledge or absence of mistake or accident on the defendant's part.

 

[Defense Counsel]: Judge, I think in that paragraph the State needs to elect or choose a specific reason that evidence comes in. I think that's just overly broad, that if they want to choose one of those, that's fine, but I just think when they -- an extraneous offense has come in, the State needs to be specific why they're bringing that offense forward.

 

Defense counsel merely argued the State needed to elect which purpose--motive, intent, preparation, knowledge, or absence of mistake or accident--for which the jury could consider the extraneous evidence of Vaughn's assault on Williams. Vaughn did not request the State to elect between the counts alleged in the indictment. By not raising this issue in the trial court, any error is procedurally defaulted.

When separate criminal acts are alleged, an election is necessary. In Phillips v. State, the Texas Court of Criminal Appeals reaffirmed its holding in O'Neal v. State, 746 S.W.2d 769, 770 (Tex. Crim. App. 1988), that in such an instance a trial court "errs by failing to have the State elect at the close of its evidence when properly requested by the defense." Phillips v. State, 193 S.W.3d 904, 909 (Tex. Crim. App. 2006).

Here, even if defense counsel had requested an election after the close of the evidence, the State would not have been required to elect. If the charging instrument contains separate paragraphs alleging different means of committing the same offense, an election is not required. Aguirre v. State, 732 S.W.2d 320, 326 (Tex. Crim. App. 1987) (op. on reh'g); see Barfield v. State, 202 S.W.3d 912, 915 (Tex. App.--Texarkana 2006, pet. ref'd). The only difference between Paragraph A and Paragraph B of the indictment is the mens rea required. Paragraph A requires Vaughn to have intentionally or knowingly caused bodily injury to S.B.; Paragraph B requires Vaughn to have merely recklessly caused bodily injury. Under the Texas Penal Code, injury to a child committed intentionally or knowingly is a first-degree felony, but injury to a child committed recklessly is a second-degree felony. Tex. Pen. Code Ann. 22.04(e) (Vernon Supp. 2006). The criminal act alleged by both paragraphs is the same. When only one crime is alleged and only one act created that crime, there is no need for an election. See Bethany v. State, 152 S.W.3d 660, 666-67 (Tex. App.--Texarkana 2004, pet. ref'd). Even if error had been preserved, the State was not required to elect. We overrule Vaughn's second point of error.

For the reasons stated, we affirm the judgment of the trial court.

 

Jack Carter

Justice

 

Date Submitted: January 29, 2007

Date Decided: May 11, 2007

 

Do Not Publish

1. In a related appeal, Vaughn v. State, cause number 06-06-00040-CR, also decided this day, we likewise affirm Vaughn's conviction for felony assault on Williams involving family violence.