Stucks, Robert Scott v. The State of Texas--Appeal from 385th District Court of Midland County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

ROBERT SCOTT STUCKS, )

) No. 08-01-00465-CR

Appellant, )

) Appeal from the

v. )

) 385th District Court

THE STATE OF TEXAS, )

) of Midland County, Texas

Appellee. )

) (TC# CR-26,382)

)

O P I N I O N

Appellant Robert Scott Stucks was convicted of burglary of a habitation in Midland County. The case was tried to a jury, which found him guilty and sentenced him to 9 years in prison and a $10,000 fine. The sole issue here is whether he was entitled to an instruction on the lesser-included offense of assault.

Trina Olgin and the Appellant=s wife, Shawna Stucks were for a time friends and they loaned each other clothes. At some point the friendship ended. In September 2000, both women still possessed clothes that had been borrowed from the other and in particular, Ms. Olgin had a shirt that belonged to Appellant.

In the early morning hours of September 18, 2000, Appellant phoned Ms. Olgin to reclaim his shirt. He wanted to go to her apartment to get the shirt, but Ms. Olgin did not give him permission to visit that evening. She requested Shawna return the clothes she had borrowed as well. The two argued and eventually Ms. Olgin hung up on Appellant. Later that night, someone knocked on Ms. Olgin=s front door. She did not recognize the person at the door and decided not to answer it. Shortly afterwards, the door flew open and Appellant entered. Appellant then began physically assaulting Ms. Olgin.

He hit her repeatedly on the top of her head with his fists while she was rolled up in a ball on her couch. Gabriel Gonzalez, who was living with Ms. Olgin, awoke to his girlfriend=s cries for help. He entered the living room, pulled Appellant off Ms. Olgin, and threw him out of the apartment. Ms. Olgin called 911.

At approximately 1:50 a.m., the police arrived at Gonzalez=s and Ms. Olgin=s apartment in response to a report of domestic disturbance. Upon their arrival, the officers found the door of the apartment kicked in by force. The door had been secured by three locks, all of which were broken. The door frame was damaged and wood splinters and pieces of sheetrock were on the floor. The police also found a footprint on the door itself. At trial, Officer Steve McNeil testified that objects in the apartment were in disarray and knocked over. He stated that it appeared to him that there had been a disturbance in the apartment.

During trial, the State called four witnesses: Officer McNeil, Officer Matthew Sowle, Trina Olgin, and Gabriel Gonzalez. The State also entered photographic exhibits of the apartment door and the imprint of a shoe which had been left on the door. The prosecution also entered into evidence a pair of VANS running shoes that had been seized from Appellant the night of the incident. The shoes appeared to be the same size and brand as those which left an imprint on Ms. Olgin=s front door.

The Appellant called no witnesses during the guilt/innocence portion of the trial. In closing argument, defense counsel argued Appellant had implied consent to enter Ms. Olgin=s apartment based on her comments to him on the phone regarding a possible exchange of clothing between the two women. Based on this theory, the defense requested the inclusion of the lesser-included offense of assault in the jury charge. The trial court denied the request. On appeal, Appellant contends the trial court=s denial of the requested charge constitutes reversible error.

AThe function of the jury charge is to instruct the jury on applying the law to the facts.@ Abdnor v. State, 871 S.W.2d 726, 731 (Tex.Crim.App. 1994). The function of the charge is to guide jurors in their deliberations and prevent confusion. Id. The jury charge is a fundamental tool in deliberations and must include a correct statement of the law. Id.; Cane v. State, 698 S.W.2d 138, 140 (Tex.Crim.App. 1985). An incorrect or incomplete charge endangers an accused=s right to jury trial by failing to properly assist the jury in its fact-finding function. Abdnor, 871 S.W.2d at 731. When this occurs, the integrity of the verdict is called into doubt. Id.

Nonetheless, an erroneous or incomplete jury charge does not automatically require reversal of a conviction. Tex.Code Crim.Proc.Ann. art. 36.19 (Vernon 1981); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). The reviewing court follows a two-step process in examining potential jury charge error. Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App. 1986); Washington v. State, 930 S.W.2d 695, 698 (Tex.App.--El Paso 1996, no pet.). First, we must determine whether error exists. Id. Second, if error is found, then we must determine whether the error resulted in sufficient harm to require reversal. Id. If a timely objection has been made at trial, we need only find Asome harm@ in order to require reversal. Almanza, 686 S.W.2d at 171; Venhaus v. State, 950 S.W.2d 158, 163 (Tex.App.--El Paso 1997, pet. ref=d).

To resolve whether a defendant is entitled to the inclusion of an instruction on a lesser-included offense in the jury charge, we employ the two-prong test set forth in Rousseau v. State.[1] Bignallv. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994)(en banc); Venhaus, 950 S.W.2d at 161. First, the lesser-included offense must be included within the proof necessary to establish the charged offense. Rousseau, 855 S.W.2d at 672. Second, some evidence must exist in the record that would allow a jury to conclude that if the defendant is guilty, he is guilty only of the lesser offense. Id. at 672-73.

In this case, the offense of assault[2] is a lesser-included offense of burglary of a habitation.[3] Thus, the inquiry is whether the second prong of the Rousseau test is satisfied. To resolve this issue, we review the entire record for any evidence that would support a verdict of guilt only of the charge of assault. Even a mere scintilla of evidence will warrant the inclusion of the lesser charge. Conflicts in evidence and the credibility of witnesses are not to be considered.

After reviewing the complete record, we conclude that no evidence was presented to the jury which would support a finding that Appellant was guilty only of assault. Rousseau, 855 S.W.2d at 672. In closing argument, the defense advanced the idea that Ms. Olgin had impliedly given Appellant permission to enter her home. However, none of the State=s witnesses, including Trina Olgin, offered any evidence suggesting Appellant entered the apartment of Ms. Olgin and Gonzalez with their consent. Rather, all of the testimony shows that he entered by kicking in a locked front door. Ms. Olgin testified that while on the phone with Appellant, she suggested he tell his wife, Shawna, to bring by the clothes she had borrowed and they could exchange with each other. However, Ms. Olgin repeatedly stated she did not give consent for Appellant to visit her apartment that night. Moreover, she certainly never testified to giving him authority to enter her apartment at will. On the contrary, she testified she did not personally know Appellant and did not want him visiting her apartment.

Appellant did not testify at trial and there was no evidence indicating he entered the apartment with the consent of Trina Olgin or Gabriel Gonzalez. Tex.Pen.Code Ann. ' 30.02. There is no evidence that would permit a jury rationally to find that if Appellant was guilty, he was guilty only of assault. Rousseau, 855 S.W.2d at 672. The second prong of the Rousseau test was not met. Id. Therefore, a charge of assault was not appropriate.

The issue is overruled and the judgment of the trial court is affirmed.

August 15, 2002 DAVID WELLINGTON CHEW, Justice

Before Panel No. 2

Barajas, C.J., McClure, and Chew, JJ.

(Do Not Publish)

 [1] 855 S.W.2d 666, 672 (Tex.Crim.App. 1993)(en banc), cert. denied, 510 U.S. 919, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993).

[2] Assault is defined by Texas Penal Code ' 22.01. It provides in part:

(a) A person commits an offense if the person:

(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person=s spouse;

(2) intentionally or knowingly threatens another with imminent bodily injury, including the person=s spouse; or

(3) intentionally or knowingly causes physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative.

Tex.Pen.Code Ann. ' 22.01 (Vernon Supp. 2002).

[3] Burglary of a habitation is an offense under Texas Penal Code '30.02. This section provides in part:

(a) A person commits an offense if, without the effective consent of the owner, the person:

(1) enters a habitation, or a building (or any portion of a building) not then open to the public, with intent to commit a felony, theft, or an assault; or

(2) remains concealed, with intent to commit a felony, theft, or an assault, in a building or habitation; or

(3) enters a building or habitation and commits or attempts to commit a felony, theft, or an assault.

(b) For purposes of this section, Aenter@ means to intrude:

(1) any part of the body; or

(2) any physical object connected with the body.

Tex.Pen.Code Ann. ' 30.02 (Vernon Supp. 2002).