Garrett, Walter Scott v. The State of Texas--Appeal from Crim Dist Ct 2 of Dallas Co of Dallas County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

WALTER SCOTT GARRETT, )

) No. 08-01-00258-CR

Appellant, )

) Appeal from the

v. )

) Criminal District Court #2

THE STATE OF TEXAS, )

) of Dallas County, Texas

Appellee. )

) (TC# F-0052119-JI)

)

O P I N I O N

This is an appeal of a jury conviction of aggravated assault. The jury sentenced Appellant to 20 years= imprisonment. Appellant brings six issues on appeal: three of the six complain of jury charge error; one claims that the evidence is factually insufficient to reject a self-defense claim; one asserts that Article 37.07, section 4(a) of the Texas Code of Criminal Procedure is unconstitutional; and finally, that the trial court erred by sustaining the State=s objection to the Appellant=s testimony that he told police that the victim attacked him first. We affirm.

In August 2000, Dallas police, responding to a report of a disturbance, found Appellant lying on top of the De=Whon Lyle, with his hand over Lyle=s mouth. Both men were covered in blood. Lyle had multiple and life threatening stab wounds and lacerations to the stomach, chest, arms, neck, head, and back. Appellant had a deep cut on his hand. Lyle, a soldier stationed at Fort Hood, claimed he was visiting Dallas to buy clothes during the tax free weekend; he had over Two Thousand Dollars cash on him. He was in the vacant apartment with Appellant because Appellant wanted to show it to him.

Appellant testified that he and Lyle were related and that he was helping Lyle buy some cocaine. They were waiting in the vacant apartment for the drug dealer to arrive when Lyle suddenly attacked him with a steak knife. Then, Appellant testified, he grabbed another steak knife and, after Lyle stabbed him in the hand, Appellant stabbed Lyle in the stomach and throat. The fight continued until Appellant had Lyle on the floor in a choke hold; that is when the police arrived.

Lyle testified that while he and Appellant were in the apartment, he fell asleep on the floor. He was awaken to find Appellant slitting his throat. Lyle asked Appellant what he was doing, and Appellant responded by stabbing him twice in his stomach. Lyle tried to leave, but could not open the locks on the door. Appellant came from behind and stabbed him twice. Appellant closed the door, pulled Lyle back into the apartment, and continued attacking him. Appellant took a box cutter and pressed it against Lyle=s skull and slit his wrists. Appellant tried to choke Lyle with his shirt; it was then that the police arrived.

The function of the jury charge is to instruct the jury on the law applicable to the case. Dinkins v. State, 894 S.W.2d 330, 339 (Tex.Crim.App.1995). When we review whether there has been error in a jury charge, we apply an Almanza analysis to determine (1) whether error actually exists in the charge, and (2) whether any resulting harm requires reversal. Almanza v. State, 686 S.W.2d 157, 171-72 (Tex.Crim.App. 1985).

In Issue One, Appellant contends the trial court erred in refusing to include a definition of reasonable doubt in the jury charge. Appellant=s argument is, as we understand it, that a Geesa[1] instruction should have been given to jury because Paulson[2], overruling the Geesa requirement was a new rule of law and should not have been applied retroactively to Appellant=s case.

We agree with Appellant and so does the Texas Court of Criminal Appeals that Paulson is not to be applied retroactively; however, the fact here is that it was not applied retroactively. This case was properly tried in compliance with the law in effect at the time of trial. This case was tried in May 2001, and Paulson was in effect. Colbert v. State, 108 S.W.3d 316, 318 (Tex.Crim.App. 2003). Ergo, the trial court properly refused to include a definition of reasonable doubt in the jury charge. Issue One is overruled.

In Issue Two, Appellant complains that the trial court=s jury instructions were error because they failed to limit the definitions of Aintentionally@ and Aknowingly@ to the result of Appellant=s conduct. The State implicitly concedes this failure; however, they point out, and Appellant acknowledges this as well, that there was no objection to the faulty instruction at trial. Accordingly, a reversal is required only if the error resulted in egregious harm. See Almanza, 686 S.W.2d at 171.

The application paragraph in the charge does limit the definitions of the culpable mental state to the result of Appellant=s conduct. Moreover, the evidence is undisputed that Appellant intentionally and knowingly did serious bodily injury to the victim with a deadly weapon. See Anderson v. State, 11 S.W.3d 369, 372 (Tex.App.--Houston [1st Dist.] 2000, pet. ref=d). Accordingly, we overrule Issue Two.

In Issues Four and Five, Appellant complains that the charge at the punishment phase of trial improperly stated that Appellant was eligible for good conduct awards when, in fact, he was not. There was no objection made at trial to this instruction.

It is undisputed that the instruction complained-of is statutorily mandated by Tex.Code Crim.Proc.Ann. art. 37.07, ' 4(a)(Vernon Supp. 2004). The trial court did not commit error by giving the mandated instruction. See Luquisv. State, 72 S.W.3d 355, 363 (Tex.Crim.App. 2002). Luquis has also addressed the constitutional claim by holding that the instruction required by Article 37.07, sec. 4(a) does not violate either federal due process or state due course of law rights of a defendant who is ineligible for mandatory supervision. See id. at 364-68. Issues Four and Five are overruled.

In Issue Three, Appellant contends that the evidence is factually insufficient to support the implicit rejection of his self-defense claim. In reviewing factual sufficiency, we consider all of the evidence, but we do not view it in the light most favorable to the verdict. Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996); Levario v. State, 964 S.W.2d 290, 295 (Tex.App. El Paso 1997, no pet.). We will set aside the verdict only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Clewis, 922 S.W.2d at 129; Levario, 964 S.W.2d at 295. In conducting a factual sufficiency review, the reviewing court cannot substitute its conclusions for those of the fact finder. Levario, 964 S.W.2d at 295. It is not within the province of this Court to interfere with the fact finder=s resolution of conflicts in the evidence or to pass on the weight or credibility of the witness's testimony. Id. Where there is conflicting evidence, the fact finder=s verdict on such matters is generally regarded as conclusive. Id.

Having reviewed the entire record, as detailed above, we cannot say that the verdict is contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. We therefore overrule Issue Three.

In Issue Six, Appellant challenges the trial court=s decision to exclude Appellant=s testimony that he told police Lyle attacked him first. Appellant further contends that since his defense was self-defense, the exclusion was of such highly probative evidence denied him of fair opportunity to present his defense.

Appellant=s legal theory as to why the testimony should have been allowed does not comport with the point on appeal. When the State first objected to Officer Young=s testimony, Appellant=s counsel stated the testimony went to Appellant=s state of mind. The second time the objection was made, Appellant=s counsel proposed no legal theory under which the testimony was appropriate. Later, outside of the jury=s presence, Appellant=s counsel stated that the specific testimony was not hearsay because it went to Appellant=s state of mind and that it would also be resgestae and that is was necessary to complete the story and provide a more accurate description of what occurred on the day in question. Appellant at no moment in time raised the theory of present sense impression. In order to preserve an error, the complaint on appeal must comport with the complaint in the trial court. See Tex.R.App.P. 33.1(a). In this case, the only theories advanced by Appellant at trial were that the evidence was admissible as a state of mind exception. Appellant has now raised the theory for the first time of on appeal that the aforementioned statements were admissible under the doctrine of present sense impression. Because this argument was not advanced at trial, the issue has not been preserved for appellate review. We believe Appellant waived any legal theory on the grounds of present sense he may have had. We overrule Appellant=s Issue Six.

Accordingly, we affirm the trial court=s judgment.

March 18, 2004

DAVID WELLINGTON CHEW, Justice

Before Panel No. 3

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

(Do Not Publish)

[1] Geesa v. State, 820 S.W.2d 154 (Tex.Crim.App. 1991).

[2] Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000).