Gary Reed v. The State of Texas--Appeal from 52nd District Court of Coryell County

IN THE

TENTH COURT OF APPEALS

No. 10-93-019-CR

GARY REED,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 52nd District Court

Coryell County, Texas

Trial Court # 12,931

O P I N I O N

Gary Reed was convicted of two counts of aggravated assault on a corrections officer. See Tex. Penal Code Ann. 22.02(a), (b) (Vernon Supp. 1994). He pleaded "true" to an enhancement paragraph, and the jury sentenced him to ten years in prison. Counsel on appeal filed an Anders brief. //

In Anders, the Supreme Court held:

The constitutional requirement of substantial equality and fair process can only be attained where counsel acts in the role of an active advocate in behalf of his client, as opposed to that of amicus curiae . . . . His role as advocate requires that he support his client's appeal to the best of his ability. Of course, if counsel finds his case to be wholly frivolous, after a conscientious examination of it, he should so advise the [appellate] court and request permission to withdraw. That request must, however, be accompanied by a brief referring to anything in the record that might arguably support the appeal. A copy of counsel's brief should be furnished the indigent and time allowed him to raise any points that he chooses; the court not counsel then proceeds, after a full examination of all the proceedings, to decide whether the case is wholly frivolous. If it so finds it may grant counsel's request to withdraw and dismiss the appeal insofar as federal requirements are concerned, or proceed to a decision on the merits, if the state law so requires. On the other hand, if it finds any of the legal points arguable on their merits (and therefore not frivolous) it must, prior to decision, afford the indigent the assistance of counsel to argue the appeal.

Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Our Court of Criminal Appeals has adopted the reasoning in Anders. Stafford v. State, 813 S.W.2d 503, 509 (Tex. Crim. App. 1991).

Counsel provided Reed with a copy of his Anders brief. Reed requested an extension of time in which to file a brief pro se. Reed's motion was granted; however, he failed to file an appellate brief. We will proceed on counsel's Anders brief, conducting our own review of the record to ascertain whether there are any arguable grounds for the appeal. See id. at 511. If arguable grounds are found, we must abate the appeal and remand the case to the trial court with orders to appoint new counsel to brief and present those and other points supporting the appeal. See id. If no arguable grounds appear, we will allow counsel to withdraw and, assuming the defendant was properly notified of his right to proceed pro se, consider the merits of the case without the assistance of counsel. See Ex parte Bowen, 835 S.W.2d 276, 277 (Tex. App. Beaumont 1992, no pet.).

FACT SUMMARY

Reed is an inmate at the Hughes Unit in Gatesville. On January 11, 1992, Reed was scheduled to be in one of the prison's recreational yards. A dispute arose between Reed and Sammy Cortaise, the correctional officer escorting him. Reed wanted to go into the right "rec" yard and Cortaise wanted him to go into the left "rec" yard. Clyde Turner, another correctional officer, was summoned. Turner ordered Reed to enter the left yard or to return to his cell.

Turner testified that Reed turned as if he were going to return to his cell; however, he suddenly swung and hit Turner in the chin with his fist. Turner struck back and began struggling with Reed. Cortaise testified that he saw Reed hit Turner and that he tried to assist Turner in restraining Reed. After the officers had wrestled Reed to the ground, according to Cortaise, Reed bit him on the left knee causing "excruciating pain." Both officers testified that they were wearing their correctional-officer uniforms at the time of the incident. Prison medical personnel testified that they treated Turner for a facial abrasion and Cortaise for a bite wound.

Reed testified that he and Cortaise "exchanged words" about the "rec yard" schedule. He testified that Turner grabbed him and threw him against the wall. Reed denied that he had hit Turner or bitten Cortaise. The defense called two of Reed's fellow inmates. Ronald Morgan testified that Turner put Reed in a "headlock," that Turner hit Reed, and that he did not see Reed hit Turner. Victor Valasquez testified that Turner grabbed Reed by the arm, that the men began fighting, and that Turner hit Reed in the face while Reed was lying on the ground.

INDEPENDENT REVIEW

Counsel's Anders brief must refer to anything in the record that might arguably support the appeal. Anders, 386 U.S. at 744, 87 S. Ct. at 1400. Counsel refers us to the indictment, the sufficiency of the evidence, the court's charge, and the court's ruling on Reed's motion to compel the production of the victims' employment records.

indictment

Reed was indicted by a Coryell County grand jury. The indictment tracked the language of the applicable Penal Code statutes. See Tex. Penal Code Ann. 22.01, 22.02. We find no defects in the indictment nor were any objections lodged against the indictment at trial. See Studer v. State, 799 S.W.2d 263 (Tex. Crim. App. 1990); Tex. Code Crim. Proc. Ann. art. 1.14 (Vernon Supp. 1994).

sufficiency of the evidence

The State was required to prove beyond a reasonable doubt the elements of aggravated assault on a correctional officer. See Tex. Penal Code Ann. 22.02(a), (b). As applied to this case, the State was required to prove that (1) Reed (2) in Coryell County, (3) on or about January 11, 1992, (4) intentionally and knowingly (5) caused bodily injury to (a) Cortaise (b) Turner, (6) (a) by biting Cortaise on the leg with his teeth, (b) by striking Turner in the face, (7) that Turner and Cortaise were then employed as correctional officers, and (8) Reed knew the victims were so employed. See id.

Evidence will sustain a conviction if, viewing it in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2788-89, 61 L. Ed. 2d 560 (1979); Matson v. State, 819 S.W.2d 839, 843 (Tex. Crim. App. 1991). The trier of fact is the sole judge of the weight and credibility of the witnesses and may believe or disbelieve all or any part of any witness' testimony. Williams v. State, 692 S.W.2d 671, 676 (Tex. Crim. App. 1984).

We have reviewed the evidence, as set forth above, in the light most favorable to the verdict and find that any rational trier of fact could have found the essential elements of both counts of aggravated assault on a corrections officer beyond a reasonable doubt. See Matson, 819 S.W.2d at 843.

the charge

Counsel directs us to a supplemental charge given during the jury's deliberations at punishment. The jury began its deliberations at 1:24 p.m. and returned a verdict of ten-years' imprisonment at 3:30 p.m. At some point during its deliberations, the jury indicated that it was having trouble reaching a unanimous verdict. // The court instructed the jury as follows:

Members of the jury, your verdict on the issue of punishment must be unanimous. During your deliberations you should discuss this matter among yourselves carefully and try if you can to reach a conclusion on the issues. I do not mean to say that any individual on the jury should yield his or her own conscience and positive conviction, but it is the duty of jurors to keep their minds open and free to every reasonable argument that may be presented by their fellow jurors under the instruction of the Court so that they may arrive at a verdict which justly answers the conscience of each individual juror. Therefore, I request you continue your deliberations.

(Emphasis added). Reed objected to the italicized portion of the instruction on the grounds that it might "influence the one juror who appears not to be able to agree with the others to change his or her vote." After the jury reached its unanimous verdict, the court individually polled the jurors.

The Court of Criminal Appeals has held that a similar instruction was not coercive. Arrevalo v. State, 489 S.W.2d 569, 572 (Tex. Crim. App. 1973). We do not find the given instruction coercive. See id.

subpoena duces tecum

Reed presented to the court a motion for subpoena duces tecum seeking the employment records of Turner and Cortaise. Reed argued that the records might be relevant as to who was the first aggressor in the incident evidence which might support an instruction on self-defense. The court conducted an in camera inspection of the records and ruled that nothing in the records was relevant to the first-aggressor issue. See Thomas v. State, 837 S.W.2d 106 (Tex. Crim. App. 1992).

Because the records were not made available for Reed's inspection, counsel urges this court to conduct an independent review to determine whether any information within them would have supported a self-defense charge. We have reviewed the employment records and conclude that nothing in the records is relevant to the first-aggressor issue. Thus, the court correctly determined that the records were irrelevant. Furthermore, as we note below, Reed's own testimony precluded an instruction on self-defense.

self-defense

In conducting our own review, we also look to the question of self-defense.

During opening argument, both the State and defense counsel broached the possibility that self-defense might be a factor in the case. See Tex. Penal Code Ann. 9.31 (Vernon 1974). However, the jury was not instructed on self-defense. The Penal Code defines several defenses, including self-defense. See id. A defense such as self-defense "requires the accused to admit the commission of the offense, but to justify or excuse his actions so as to absolve him of criminal responsibility for engaging in conduct which otherwise constitutes a crime." Sanders v. State, 707 S.W.2d 78, 81 (Tex. Crim. App. 1986). In reviewing Reed's testimony, we find that he denied striking Turner or biting Cortaise. There was no evidence raising self-defense and thus no error in failing to instruct the jury. See id.

CONCLUSION

After a full examination of all the proceedings, we agree with counsel that the appeal of this case is wholly frivolous. See Anders, 386 U.S. at 744, 87 S. Ct. at 1400. We affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed April 20, 1994

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