Charles Gilmore v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-92-223-CR

CHARLES GILMORE,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 12,782

O P I N I O N

A jury convicted Charles Gilmore of aggravated assault with a deadly weapon and assessed punishment at 99 years. Gilmore's court-appointed counsel has filed a brief in which she states that the appeal is wholly frivolous and without merit. The brief meets the requirements of Anders v. California, by presenting a professional evaluation of the record and advancing five arguable grounds that might support the appeal. See Anders v. California, 386 U.S. 738, 87 S. Ct. 13961, 18 L. Ed. 2d 493 (1967); High v. State, 573 S.W.2d 807, 809-810 (Tex. Crim. App. [Panel Op.] 1978).

A copy of counsel's brief has been delivered to Gilmore advising him of his right to file a pro se brief. No pro se brief has been filed within thirty days. See High, 573 S.W.2d at 812.

The first contention is that the return of the indictment by the grand jury was based on "insufficient information." In January 1992 the grand jury of Coryell County indicted Gilmore. He did not file a motion to quash the indictment. The indictment alleged all the elements required for an offense committed under section 22.02 of the Texas Penal Code. See Tex. Penal Code Ann. 22.02 (Vernon Supp. 1993).

To return an indictment a grand jury needs only probable cause. August v. State, 681 S.W.2d 636, 639 (Tex. App. Houston [14th Dist.] 1984). The members of a grand jury determine sufficiency of the evidence to return an indictment. Ex Parte Port, 674 S.W.2d 772, 779 (Tex. Crim. App. 1984). The courts will not go behind the actions of a grand jury to determine whether sufficient evidence existed to justify the return of an indictment. Id. An indictment that follows the words of the penal statutes is sufficient. Thomas v. State, 621 S.W.2d 158, 161 (Tex. Crim. App. 1980). We overrule Gilmore's first arguable point of error.

In his second arguable point, Gilmore contends that each element of the offense of aggravated assault was not proven beyond a reasonable doubt. The State has the burden of proving, beyond a reasonable doubt that Gilmore, in Coryell County, on or about October 22, 1991, intentionally and knowingly caused bodily injury to Sherman Duhart by stabbing him with a deadly weapon, that the manner of the weapon's use or intended use was capable of causing death or serious bodily injury, and that the weapon was designed, made, and adapted for the purpose of inflicting death and serious bodily injury.

The victim, Sherman Duhart, testified that Gilmore was the person who cut his neck. In court Duhart identified Gilmore as his assailant. Johnny Smith, a correctional officer, testified that the attack on October 22, 1991, took place in the Hughes Correctional Unit in Coryell County. Gilmore admitted that he knowingly and intentionally cut Duhart. Margaret Scott, a nurse at the correctional facility, testified that Duhart was bleeding profusely from the wound and internally. She further stated that Duhart had no blood pressure reading and that his pulse rate was so weak it could not be counted. Scott also testified that the weapon, a toothbrush with a razor blade attached, was a deadly weapon that was capable of causing death or serious bodily injury. Furthermore, Gilmore admitted that he used the weapon to cut Duhart. Therefore, the evidence was sufficient to prove the required elements beyond a reasonable doubt. We overrule the second arguable point.

In his third arguable point, Gilmore contends that the trial court erred by overruling the motion to suppress his statement. Gilmore's motion to suppress his oral statement was based on Lykins v. State, 784 S.W.2d 32 (Tex. Crim. App. 1989), in which the court held that an oral statement given by an inmate to a TDCJ-ID major was compelled because the inmate would have been penalized, pursuant to a prison regulation, if he refused to give a statement. Id. at 37.

Edward McElyea, an Internal Affairs investigator, testified that the regulation requiring inmates to respond to questioning or face disciplinary action is not enforced by his office. He testified that his office made it clear to inmates that the information an inmate gave would be used against him in a criminal trial. He also stated that he made it clear to Gilmore that he would not be disciplined for failing to talk to him.

In Lykins, the inmate's statement was given due to the inmate's fear of the consequences of being disciplined. In the present case, there is no evidence of duress or that Gilmore gave his statement because he was afraid of being disciplined. Thus, Gilmore's motion to suppress was properly overruled. We overrule the third arguable point.

In his fourth arguable point, Gilmore contends that the prosecutor's argument was not within the record. Proper jury argument falls within the following categories: (1) a summary of the evidence; (2) a reasonable deduction from the evidence; (3) an answer to the opponent's argument; or (4) a plea for law enforcement. Alejandro v. State, 493 S.W.2d 230, 231 (Tex. Crim. App. 1973). All other arguments are improper. The general rule is that the defendant must object to the improper argument to preserve a complaint for appeal. Harris v. State, 784 S.W.2d 5, 12 (Tex. Crim. App. 1989). When the jury argument is so prejudicial that an instruction to disregard the argument could not cure the harm, neither a timely objection nor an adverse ruling is required to preserve the complaint for appellate review. Id. The jury argument in this case, however, was neither prejudicial nor improper.

Defense counsel did not object to the prosecutor's summation during the trial. However, we see nothing in the closing argument that is so prejudicial that an instruction to disregard the argument could not cure the harm. Thus, a timely objection was required to preserve the complaint for appeal. We overrule the fourth arguable point.

In his final arguable point, Gilmore argues that the jury charges did not comply with the law. Gilmore requested a charge on the lesser-included offense of assault. For a defendant to be entitled to a charge on a lesser-included offense, the offense must be within the proof necessary to establish the offense charged and there must be some evidence in the record that if the defendant is guilty, he is guilty only of the lesser-included offense. Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985).

The first prong is met assault is a lesser-included offense of aggravated assault. See Booker v. State, 127 S.W.2d 460, 460 (Tex. Crim. App. 1939). However, the second prong is not met. See Aguilar, 682 S.W.2d at 558. There are two ways in which the evidence may indicate that a defendant is guilty only of the lesser offense. Saunders v. State, 840 S.W.2d 390, 391 (Tex. Crim. App. 1992). First, there may be evidence that refutes or negates other evidence establishing the greater offense. Id. Second, a defendant may be shown to be guilty only of the lesser offense if the evidence presented is subject to different interpretations. Id. at 392.

Aggravated assault is committed when a person causes serious bodily injury to another or threatens another with a deadly weapon. Tex. Penal Code Ann. 22.02.

A deadly weapon is defined in section 1.07(a)(11) of the Texas Penal Code:

"Deadly weapon" means:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex. Penal Code Ann. 1.07(a)(11)(A), (B) (Vernon 1974).

A toothbrush with a razor blade is not a deadly weapon per se under subparagraph (A); however, it may be shown to be a deadly weapon under subparagraph (B) by showing the manner of its use, its size and shape, and its capacity to produce death or serious bodily injury. See Thomas v. State, 821 S.W.2d 616, 619-20 (Tex. Crim. App. 1991).

In the present case, a corrections officer and a nurse testified that the weapon used was a deadly weapon. Furthermore, the nurse testified that Duhart had lost so much blood that she was not able to get a blood pressure or a pulse reading. Therefore, the evidence does not refute or negate the evidence of aggravated assault. See Saunders, 840 S.W.2d at 391. Based on the facts of this case and the nature of the injury the razor blade produced, reasonable minds could not differ about the manner of its use. See id. at 392. Because Gilmore used a deadly weapon he is not guilty only of assault. See Aguilar, 682 S.W.2d at 558. Thus, Gilmore was not entitled to a charge including the lesser-included offense of assault.

Gilmore also requested an instruction on self-defense. He argues that, for two weeks prior to the offense, Duhart approached him about engaging in homosexual activity with him. He further contends that he made the weapon after Duhart told him he would come to his cell after school. Gilmore stated that he decided to cut Duhart to show him that he "did not play in homosexuality."

The use of force against another is not justified in response to verbal provocation alone. Tex. Penal Code Ann. 9.31 (Vernon 1974). There is no evidence in the record of any provocation by Duhart other than verbal provocation. Thus, because there is nothing to indicate Gilmore cut Duhart in self-defense, the court properly denied his motion for an instruction to the jury on self-defense. We overrule the fifth arguable point.

After reviewing the statement of facts and the transcript, the Court is in agreement with Gilmore's appointed counsel that the appeal is without merit. The Anders brief contains a certificate of service to Gilmore reflecting counsel's compliance with Anders by sending a copy of the brief to Gilmore and advising him of his right to file a pro se brief. As of this date, we have received no brief from Gilmore. We have made a full examination of the record and find no error requiring reversal. We, therefore, find the appeal without merit and affirm the judgment.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed March 3, 1993

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