ROY TREJO v. THE STATE OF TEXAS--Appeal from 117th District Court of Nueces County

NUMBER 13-04-143-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

___________________________________________________________________

  ROY TREJO, Appellant,

v.

  THE STATE OF TEXAS, Appellee.

___________________________________________________________________

On appeal from the 117th District Court

of Nueces County, Texas.

___________________________________________________ _______________

   Memorandum Opinion[1]

Before Chief Justice Valdez and Justices Hinojosa and Rodriguez

Memorandum Opinion by Justice Rodriguez

Appellant, Roy Trejo, was charged with the offense of burglary of a habitation with the commission or attempted commission of assault. See Tex. Pen. Code Ann. ' 30.02(a)(3), (c)(2) (Vernon 2003) (providing that a person commits burglary if, without the effective consent of the owner, the person enters a habitation and commits or attempts to commit an assault). Following a jury trial in which appellant represented himself,[2] appellant was found guilty of the offense charged. Appellant pleaded true to the habitual felony offender enhancement, and the trial court assessed punishment at thirty years confinement in the Institutional Division of the Texas Department of Criminal Justice. The trial court has certified that this case "is not a plea bargain case, and the defendant has the right of appeal." See Tex. R. App. P. 25.2(a)(2). By three issues, appellant complains that (1) the jury charge was erroneous and resulted in egregious harm, (2) the evidence is factually insufficient to support his conviction, and (3) the judgment should be reformed to indicate a conviction for a second degree felony rather than a first degree felony. We affirm the judgment as reformed.

I. Analysis

A. Charge Error

In his first issue, appellant contends that he was egregiously harmed when the trial court charged the jury with an abstract definition of the "reckless" mental state. Appellant contends that, because the trial court gave this abstract definition, the jury was improperly permitted to find him guilty of burglary for an entry that was made "recklessly" instead of "intentionally or knowingly."

Appellant, however, was charged with the offense of burglary of a habitation with the commission of or attempted commission of assault. The abstract definition of "reckless" was included in the charge immediately preceding the abstract statement of law setting out that "[a] person commits an offense of assault if the person intentionally, knowingly OR recklessly causes bodily injury to another." See Tex. Pen. Code Ann. ' 22.01(a)(1) (Vernon Supp. 2004-05). It was necessary, therefore, for a definition of "reckless" to be given so that the jury could determine whether appellant committed or attempted to commit an assault, a necessary element of the charged offense. Thus, we conclude there was no error in including the mental state of recklessness in the charge.

Furthermore, if we were to conclude error, we would also conclude it was harmless. Appellant did not object to the charge; therefore, he must establish that he suffered egregious harm from the claimed error. See Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (en banc); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (en banc). Appellant argues that the inclusion of the definition for "recklessness" allowed the jury to convict him of entering the home on proof of a mere mental state of reckless rather than the intentional or knowing entry required by the indictment. However, in this case, the application paragraph stated that "[t]he State must prove that the Defendant intentionally or knowingly entered the habitation without the owner's consent . . . ." Thus, the jury could only convict appellant if it found he knowingly or intentionally committed the offense of burglary of a habitation. It is well settled that even if there is error in an abstract definition or in an abstract statement of the law that goes beyond the allegations of the indictment, there is no egregious harm if the application paragraph, as in this case, correctly instructs the jury and so restricts the jury to the allegations in the indictment. Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); Grady v. State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981). Accordingly, we conclude that the giving of the definition of the "reckless" mental state was not error, and even were we to conclude error, appellant has failed to demonstrate egregious harm.

Additionally, appellant complains of a portion of the prosecutor's argument wherein she stated, "[o]bviously, in this case, [appellant] was reckless in entering." However, appellant failed to object to the this argument at trial. "[A] defendant's failure to object to a jury argument or a defendant's failure to pursue to an adverse ruling his objection to a jury argument forfeits his right to complain about the argument on appeal." Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). Based on the foregoing, we conclude appellant forfeited his right to complain about the prosecutor's argument.

Appellant's first issue is overruled.

B. Factual Sufficiency

By his second issue, appellant contends that the evidence is factually insufficient to support his conviction. Specifically, appellant challenges the factual sufficiency of the evidence to prove the element of assault or attempted commission of assault and argues that even if there is some evidence supporting guilt as to that element, it is outweighed by contrary proof.

The sole question to be answered in a factual sufficiency review is whether, considering all of the evidence in a neutral light, a jury was rationally justified in finding guilt beyond a reasonable doubt. Zuniga v. State, 144 S.W.3d 477, 484 (Tex. Crim. App. 2004); see Cain v. State, 958 S.W.2d 404, 410 (Tex. Crim. App. 1997) (providing that the reviewing court, in performing a factual sufficiency review, is required to give deference to the fact finder and examine all evidence impartially). There are two ways in which the evidence may be factually insufficient. The first is where the evidence supporting the conviction is itself too weak, standing alone, to support the finding of guilt beyond a reasonable doubt. Zuniga, 144 S.W.3d at 484. The second is where the evidence contrary to the verdict is so strong that the "beyond-a-reasonable-doubt" burden could not have been met. Id. at 484-85. Unless the available record clearly reveals a different result is warranted, a reviewing court must defer to the fact finder's determination concerning the weight to be given contradictory testimonial evidence. Johnson v. State, 23 S.W.3d 1, 8 (Tex. Crim. App. 2000) (en banc). A court of appeals may not reverse a fact finder's decision simply because it disagrees with the result; the appellate court must defer to such findings, and may find the evidence factually insufficient only where necessary to prevent manifest injustice. Cain, 958 S.W.2d at 407.

The first victim to testify in this case stated that she was hit in the heel by the door when appellant kicked the door as he entered the home. See Tex. Pen. Code Ann. ' 30.02(b)(1) (Vernon 2003) (defining "enter" under the burglary of a habitation statute as including the intrusion of any part of the body). The victim also testified that after she locked herself in her mother's bedroom, she was scared and feared that appellant would hurt her with whatever he had in his hand. The victim testified that appellant was yelling at her and demanding that she come out of the room. She was afraid that appellant would break into the room and injure her or take her somewhere.

The second victim, who was also in the house, testified that she was afraid of whoever was kicking in the door and that she became ill with pain, a rapid heart beat and breathing difficulty. See id. ' 1.07(a)(8) (defining "bodily injury" as physical pain, illness, or any impairment of physical condition). Although the record is not clear as to when this illness began, it is clear that she was afraid throughout the incident. Additionally, one of the officers testified that when he arrived and contacted her, she was "having difficulty breathing at that time and she had her hands to her chest."

Appellant urges, however, that while the first victim testified about being afraid, it is unclear whether those feelings had to do with fear before or after appellant entered the residence. He also notes that any evidence of actual injury to this victim had to do with the door clipping her in the heal of her foot when appellant allegedly kicked down the door leading into the house. As to the second victim, appellant acknowledges that at some point she had pain, rapid heartbeat, and difficulty breathing, but did not go to the hospital that day and apparently did not see a doctor for several days. Additionally, appellant points us to the testimony of the first victim's brother who testified that appellant did cut himself with a small, knifelike razor and simply laid down on a bed until police arrived.

Considering this evidence in a neutral light and giving deference to the fact finder, we conclude a jury could be rationally justified in finding appellant guilty of burglary of a habitation with the commission or attempted commission of assault. The evidence supporting the conviction is itself not too weak, standing alone, to support the finding of guilt beyond a reasonable doubt and is not outweighed by contrary proof, as appellant contends. See Zuniga, 144 S.W.3d at 484; Cain, 958 S.W.2d at 410. Thus, we conclude the evidence is factually sufficient and overrule appellant's second issue.

C. Reformation of Judgment

Appellant's third issue asserts that the judgment improperly reflects a conviction for a first-degree felony burglary of a habitation rather than a second degree felony burglary of a habitation with the commission or attempted commission of assault as was found by the jury. The State concurs.

A burglary of a habitation with the commission or attempted commission of a simple assault is a second degree felony. See Tex. Pen. Code Ann. ' 30.02(a)(3), (c)(2) (Vernon 2003) (providing that burglary of a habitation is a second degree felony); cf. Tex. Pen. Code Ann. ' 30.02(a)(3), (d)(2) (Vernon 2003) (making burglary of a habitation with the commission or attempted commission of a felony, other than felony theft, i.e., aggravated assault, a first degree offense). Although the jury found appellant guilty of burglary of a habitation with the commission or attempted commission of assault, not aggravated assault, the judgment in the present case nevertheless reflects a conviction for a first degree felony burglary of a habitation.

Because we have the necessary data and evidence before us for reformation, we conclude that the judgment of the trial court should be reformed. See Banks v. State, 708 S.W.2d 460, 462 (Tex. Crim. App. 1986). Accordingly, we sustain appellant's third issue.[3]

II. Conclusion

Accordingly, we reform the trial court judgment to reflect a conviction for a second degree felony, and we affirm the judgment as reformed.

NELDA V. RODRIGUEZ

Justice

Do not publish.

Tex. R. App. P.47.2(b).

Memorandum Opinion delivered and

filed this 4th day of August, 2005.

[1]All issues of law presented by this case are well settled, and the parties are familiar with the facts. Therefore, we will not recite the law or the facts in this memorandum opinion, except as necessary to advise the parties of the Court's decision and the basic reasons for it. See Tex. R. App. P. 47.4.

[2]The trial court appointed an attorney who was present during the trial for consultation and advice.

[3]We note that, after pleading true to the habitual felony offender allegations, appellant was sentenced within a punishment range of not less than twenty-five years and not greater than ninety-nine years. See Tex. Pen. Code Ann. ' 12.42(d) (Vernon Supp. 2004-05). This portion of the judgment is not in dispute.