Ivan Jerome Roberts v. The State of Texas--Appeal from 40th District Court of Ellis County

IN THE

TENTH COURT OF APPEALS

No. 10-04-00203-CR

Ivan Jerome Roberts,

Appellant

v.

The State of  Texas,

Appellee

From the 40th District Court

Ellis County, Texas

Trial Court # 28164CR

MEMORANDUM Opinion

  Ivan Roberts was charged with the offense of injury to a child. Tex. Pen. Code Ann. 22.04 (Vernon 2003). The jury found him guilty and assessed ten years imprisonment. He appeals on two issues: (1) the jury charge contained error because it did not instruct the jury on the subjective element of the defense of parental discipline; and (2) the evidence is factually insufficient.

We will overrule the issues and affirm the judgment.

BACKGROUND

Robert s eleven-year-old son got in trouble at school. He was punished at school by being swatted with a paddle. At home, his father whipped him with a belt. An investigator with Child Protective Services testified that she observed injuries to the boy s head, neck, back, arm, buttocks, and legs. Photographs of the boy s injuries were admitted into evidence. The boy testified that his father told him to take off his clothes, had him lean over a bench press, and whipped him with a belt that had a metal buckle. He testified that his father had whipped him before but did not usually hit him on the neck and head. Roberts testified in his own defense that he disciplines his sons with a belt when he feels it is appropriate. He testified that the blows above the shoulders were an accident, but admitted that the purpose of the whipping was to cause pain.

Jury Charge

Roberts argues that the trial court s jury charge on guilt-innocence contained error in that the trial court should have included a subjective component in the charge on parental discipline. He acknowledges that he did not object to the charge, but contends that alleged error caused him egregious harm. See Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984).

Section 9.61 of the Penal Code sets out the defense applicable to the parent-child relationship. That section states that the use of force, but not deadly force, against a child younger than eighteen years of age is justified: (1) if the actor is the child s parent or stepparent or is acting in loco parentis to the child; and (2) when and to the degree the actor reasonably believes the force is necessary to discipline the child or to safeguard or promote his welfare. Tex. Pen. Code Ann. 9.61 (Vernon 2003). The Penal Code defines a reasonable belief as a belief that would be held by an ordinary and prudent man in the same circumstances as the actor. Tex. Pen. Code Ann. 1.07(a)(42) (Vernon Supp. 2004-05).

Roberts argues that the jury instruction that the trial court gave regarding reasonable belief was error because it is strictly objective and omits the subjective aspect of the defense. He cites our opinion in Davis v. State for the proposition that there is a subjective aspect to the defense. 104 S.W.3d 177, 181 (Tex. App. Waco 2003, no pet.). In Davis, we held that [a]lthough the jury employs an objective standard to determine the reasonableness of the defendant s belief, it must view the facts from the defendant s perspective. Id. at 181 (emphasis added). Here, the jury was instructed that reasonable belief means a belief that would be held by an ordinary and prudent person in the same circumstances as the defendant. We find no error in the jury instruction and overrule this issue.

Factual Sufficiency

Roberts contends the evidence is factually insufficient to support the verdict, because he subjectively thought he acted within his parameters as a parent when he whipped his son. Because reasonable discipline is a justification, the State is not required to affirmatively produce evidence which refutes the claim; rather, the State has the burden to prove its case beyond a reasonable doubt. Goulart v. State, 26 S.W.3d 5, 10 (Tex. App. Waco 2000, pet. ref d). The jury is required to find beyond a reasonable doubt that the level of force used by the parent was not justified. Id. at 11. In reviewing factual sufficiency, we consider all of the evidence in a neutral light to determine whether the jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004).

Again citing Davis, Roberts argues that the evidence is factually insufficient to show he acted in a manner contrary to his subjective reasonable beliefs. His reliance on Davis is misguided. In Davis, we held that the jury must view the facts from the defendant s perspective, but the jury employs an objective standard to determine the reasonableness of the defendant s belief. 104 S.W.3d at 181. Viewing the facts from the defendant s perspective, the jury could have concluded that a reasonable person would not believe that the force used against Roberts s son was necessary to discipline him or to safeguard or promote his welfare. The evidence is factually sufficient to sustain the verdict.

CONCLUSION

Having overruled the issues, we affirm the judgment.

BILL VANCE

Justice

Before Chief Justice Gray,

Justice Vance, and

Justice Reyna

Affirmed

Opinion delivered and filed April 27, 2005

Do not publish

[CR25]