Delvin Dewayne Busby v. The State of Texas--Appeal from 354th District Court of Hunt County

COURT OF APPEALS

EIGHTH DISTRICT OF TEXAS

EL PASO, TEXAS

)

DELVIN DEWAYNE BUSBY, ) No. 08-04-00155-CR

)

Appellant, ) Appeal from

)

v. ) 354th District Court

)

THE STATE OF TEXAS, ) of Hunt County, Texas

)

Appellee. ) (TC# 21,853)

O P I N I O N

Delvin Dewayne Busby appeals his conviction for retaliation. A jury found Appellant guilty, and upon finding that two enhancements provisions were true, the trial court sentenced him to thirty years in the Texas Department of Criminal Justice. We affirm.

FACTUAL SUMMARY

On August 6, 2003, Hunt County Sheriff s Investigator Roger Seals interviewed Alice Marie James at the sheriff s office in connection with a criminal investigation of Appellant. James considered herself to be married to Appellant. She gave Seals information and Seals characterized her as a prospective witness. After the interview, Seals drove James home. He dropped her off at the driveway and continued down the road to turn around. When he turned, he saw Appellant standing at the corner. Nevertheless, he went on his way.

Appellant approached James and asked her what she had said to the detective. When James told him she had answered some questions, Appellant looked nervous. Appellant asked whether she would say that he was with her. When James replied that she couldn t tell the officers they were together twenty-four hours a day every day, Appellant became upset. He approached James and reached out to hit her. James pushed him, breaking the strength of the blow. When she pulled back, Appellant tried to strike her again. James remembered yelling for Appellant to calm down and for someone to call the police.

James s neighbor, Brenda Drinnon, testified that she heard yelling that day between 2 and 6 p.m.. She recognized the voices as those of James and Appellant. Drinnon could not make out the words, but she could tell they were yelling and angry. When she looked outside, she saw Appellant and James by James s trailer. When James yelled for someone to call the police, Drinnon made the call.

Appellant s sister testified that Appellant and James would argue about petty things. An acquaintance of the couple explained that their arguments were often heated. James herself admitted that the couple fought at times.

SUFFICIENCY OF THE EVIDENCE

In Points of Error One and Two, Appellant challenges the legal and factual sufficiency of the evidence to support his conviction. He complains that the State failed to present any evidence that he actually harmed James since she pushed him away and broke off any blow that might have occurred.

Standards of Review

In reviewing the legal sufficiency of the evidence to support a criminal conviction, we must review all the evidence, both State and defense, in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 2789, 61 L. Ed. 2d 560, 573 (1979); Geesa v. State, 820 S.W.2d 154, 159 (Tex.Crim.App. 1991), overruled on other grounds, Paulson v. State, 28 S.W.3d 570 (Tex.Crim.App. 2000). This familiar standard gives full play to the responsibility of the trier of fact fairly to resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from basic to ultimate facts. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789, 61 L. Ed. 2d at 573. We do not resolve any conflict of fact or assign credibility to the witnesses, as it was the function of the trier of fact to do so. See Adelman v. State, 828 S.W.2d 418, 421 (Tex.Crim.App. 1992); Matson v. State, 819 S.W.2d 839, 843 (Tex.Crim.App. 1991). Instead, our duty is only to determine if both the explicit and implicit findings of the trier of fact are rational by viewing all of the evidence admitted at trial in a light most favorable to the verdict. Adelman, 828 S.W.2d at 422. In so doing, any inconsistencies in the evidence are resolved in favor of the verdict. Matson, 819 S.W.2d at 843. Further, the standard of review is the same for both direct and circumstantial evidence cases. Geesa, 820 S .W.2d at 158.

In reviewing the factual sufficiency of the evidence to support a conviction, we are to view all the evidence in a neutral light, favoring neither party. Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Clewis v. State, 922 S.W.2d 126, 129 (Tex.Crim.App. 1996). Evidence is factually insufficient if it is so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand, or the finding of guilt is against the great weight and preponderance of the available evidence. Johnson, 23 S.W.3d at 11. Therefore, the question we must consider in conducting a factual sufficiency review is whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the fact finder's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. See id. In performing this review, we are to give due deference to the fact finder's determinations. See id. at 8- 9; Clewis, 922 S.W.2d at 136. The fact finder is the judge of the credibility of the witnesses and may believe all, some, or none of the testimony. Chambers v. State, 805 S.W.2d 459, 461 (Tex.Crim.App. 1991). Consequently, we may find the evidence factually insufficient only where necessary to prevent a manifest injustice from occurring. See Johnson, 23 S.W.3d at 9, 12; Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997).

Retaliation

A person commits the offense of retaliation if he intentionally or knowingly harms or threatens to harm another by an unlawful act in retaliation for or on account of the service or status of another as a public servant, witness, prospective witness, or informant. Tex.Penal Code Ann. 36.06(a)(1)(A)(Vernon Supp. 2004-05). Harm is defined as anything reasonably regarded as loss, disadvantage, or injury, including harm to another person in whose welfare the person affected is interested. Tex.Penal Code Ann. 1.07(25)(Vernon Supp. 2004-05). A person commits assault if the person 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.Penal Code Ann. 22.01(a)(3)(Vernon Supp. 2004-05). Appellant was charged with knowingly and intentionally harming James by assaulting her in retaliation for and because of her status as a prospective witness.

James testified that when she told Appellant she could not provide him with an alibi, Appellant reached out to hit her. She pushed Appellant, which broke the strength of his swing. She described how Appellant s fingertips caught her face instead of a direct blow. There were no marks and she did not seek medical care. Nevertheless, Appellant still made offensive and uninvited contact with her. James wanted Appellant to calm down since she knew he could become angrier and hurt her. Indeed, when James pulled back, Appellant attempted to strike her again.

Viewing the evidence in a light most favorable to the verdict, there was testimony that Appellant harmed James by assaulting her. The evidence was sufficient for a rational trier of fact to find Appellant guilty of retaliation beyond a reasonable doubt. Viewing the evidence in a neutral light, we do not find the evidence to be so weak that it would be clearly wrong and manifestly unjust to allow the verdict to stand nor the finding of guilt against the great weight and preponderance of the evidence. The jury obviously believed that Appellant s actions toward James were offensive, constituted assault, and thus harmed James. We overrule Points of Error One and Two.

MEANS AND MANNER OF COMMISSION OF CRIME

In Point of Error Three, Appellant contends that the trial court submitted a means and manner of committing retaliation which was not pled in the indictment. He admits there was no objection to the charge at trial but claims that the error was fundamental. In Point of Error Four, Appellant complains that his counsel rendered ineffective assistance by failing to object.

Indictment and Charge

Appellant was charged by indictment with knowingly and intentionally harming James by assaulting her in retaliation for and on the account of the service and status of her as a prospective witness. Retaliation can be committed by either threatening to harm or harming another. See Tex. Penal Code Ann. 36.06(a). In the definitions, the jury charge explained that a person commits retaliation if he intentionally or knowingly harms or threatens to harm another. The application paragraph charged that the jury must find beyond a reasonable doubt that Appellant knowingly and intentionally harmed James by assaulting her.

Standard of Review

When reviewing charge error, we conduct a two-step analysis. We must first determine whether error actually exists in the charge. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984); Irizarry v. State, 916 S.W.2d 612, 614 (Tex.App.--San Antonio 1996, pet. ref d). We view the charge as a whole and our review should not be limited to a series of isolated statements or parts of the charge standing alone. See Holley v. State, 766 S.W.2d 254, 256 (Tex.Crim.App. 1989); Inman v. State, 650 S.W.2d 417, 419 (Tex.Crim.App. 1983). Second, we must determine whether sufficient harm resulted from the error to require reversal. Almanza, 686 S.W.2d at 171; Irizarry, 916 S.W.2d at 614. Which harmless error standard applies depends upon whether the defendant objected. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim.App. 1994); Irizarry, 916 S.W.2d at 614. Having failed to object, Appellant must show that he suffered actual egregious harm. Almanza, 686 S.W.2d at 171; Maldonado v. State, 902 S.W.2d 708, 713 (Tex.App.--El Paso 1995, no pet.).

In viewing the charge as a whole, we conclude that the jury was provided with the full statutory definition of retaliation. The charge defined retaliation as knowingly and intentionally threatening to harm another. While the application paragraph limited the definition to knowingly and intentionally harming another, the charge accurately set out the law, was authorized by the indictment, and adequately described the particular offense for which Appellant was tried. Since we find no error, we need not address whether trial counsel rendered ineffective assistance. Points of Error Three and Four are overruled.

LESSER-INCLUDED OFFENSE

In Point of Error Five, Appellant contends that the trial court erred in denying his request for a lesser-included charge on assault. He argues that since he was charged with retaliation by assault, assault was necessarily a lesser-included offense since the jury had to find that he assaulted James in order to find that he committed retaliation.

In deciding whether a jury should be instructed on a lesser offense, courts apply the two-prong Aguilar/Rousseau test. Bignall v. State, 887 S.W.2d 21, 23 (Tex.Crim.App. 1994); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.), cert. denied, 510 U.S. 919, 114 S. Ct. 313, 126 L. Ed. 2d 260 (1993); Royster v. State, 622 S.W.2d 442, 446 (Tex.Crim.App. 1981). First, we must determine whether the lesser offense actually is a lesser-included offense of the offense charged. Rousseau, 855 S.W.2d at 672; Aguilar v. State, 682 S.W.2d 556, 558 (Tex.Crim.App. 1985). An offense is a lesser-included offense if: (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. Tex.Code Crim.Proc.Ann. art. 37.09 (Vernon 1981).

Retaliation requires proof that (1) intentional or knowing harm or threats to harm another (2) by an unlawful act, (3) in retaliation for or on account of the service or status of another as a public servant, witness, prospective witness, or informant or person who has reported or who the actor knows intends to report the occurrence of a crime or to prevent or delay the service of another as a public servant, witness, prospective witness, or informant or person who has reported or who the actor knows intends to report the occurrence of a crime. Tex.Penal Code Ann. 36.06. Assault requires proof of (1) intentionally, knowingly, or recklessly causing of bodily injury to another, (2) intentionally or knowingly threatening another with imminent bodily injury, or (3) intentionally or knowingly causing physical contact with another when the person knows or should reasonably believe that the other will regard the contact as offensive or provocative. Tex.Penal Code Ann. 22.01. We find that the first prong of the Aguilar/Rousseau test is satisfied.

However, simply because a lesser offense is included within the proof of a greater offense does not necessarily mean that a jury charge on the lesser offense is warranted. Aguilar, 682 S.W.2d at 558. We must now determine whether the record contained some evidence that would have permitted a rational jury to find that Appellant was guilty only of the lesser-included offense. Schweinle v. State, 915 S.W.2d 17,18 (Tex.Crim.App. 1996); Rousseau, 855 S.W.2d at 672; Royster, 622 S.W.2d at 444.

Appellant argues that the jury could have found him guilty of only the lesser-included offense since James was fuzzy on why Appellant assaulted her. He claims James testified she merely answered questions at the sheriff s department, she wasn t sure that Appellant was a suspect in the crime under investigation, and she wasn t sure whether Appellant knew he was being investigated. But the evidence also revealed that Investigator Seals was conducting a criminal investigation of Appellant, that James was a prospective witness, that Appellant knew James had spoken with the detective, that Appellant questioned James about what she told the detective, and that Appellant appeared nervous. When James said she would not provide an alibi for Appellant, he reached out to strike her.

While there was evidence that the couple quarreled and at times their arguments were heated, there was no evidence that anything other than her participation as a witness in an ongoing criminal investigation provoked the assault. We conclude that the second prong of the Aguilar/Rousseau test was not satisfied, and Appellant was not entitled to a lesser-included offense instruction on assault. Point of Error Five is overruled.

ENHANCEMENTS

In Points of Error Six and Seven, Appellant argues the trial court erred in finding the enhancement allegations true since there were variances between the offenses alleged in the indictment and the offenses proved at trial. The indictment included two enhancement paragraphs. Paragraph One alleged that Appellant was convicted of felony credit card abuse on June 1, 1989 in the District Court of Dallas County. The pen packet admitted by the State showed Appellant was convicted in the 283rd District Court of Dallas County. Appellant argues that the variance was material and prejudicial since the State failed to allege a cause number to allow him or his attorney to locate the case. He also complains that the district court was not properly identified. Paragraph Two alleged that Appellant was convicted of felony theft of property in an amount over $200 on November 29, 1979 in the District Court of Dallas County. The pen packet admitted by the State revealed he was convicted in Criminal District Court No. 2 of Dallas County. Appellant argues that again no cause number was alleged in the indictment and that the particular district court was not identified. He further complains that the enhancement paragraph designated the crime as theft of property of the value of $200 or more but less than $10,000.

It is not necessary to allege prior convictions for the purpose of enhancement with the same particularity as must be used for charging the original offense. Coleman v. State, 577 S.W.2d 486, 489 (Tex.Crim.App. 1979). In alleging a prior conviction for enhancement of punishment, the allegations should include the court in which the conviction was obtained, the date of the conviction, and the nature of the offense. Hollins v. State, 571 S.W.2d 873, 876 (Tex.Crim.App. 1978). The purpose of the enhancement is to provide the accused with notice of the prior conviction relied upon by the State. Bevins v. State, 422 S.W.2d 180, 181 (Tex.Crim.App. 1967). If the sufficiency of these allegations is to be reviewable on appeal, the defendant must have moved to quash the enhancement in the trial court. Teamer v. State, 557 S.W.2d 110, 113 (Tex.Crim.App. 1977); Prodon v. State, 555 S.W.2d 451, 453 (Tex.Crim.App. 1977); Arce v. State, 552 S.W.2d 163, 164 (Tex.Crim.App. 1977). No motion to quash was filed below.

Moreover, allegations of a wrong court in a multi-district county are not fatal. Cole v. State, 611 S.W.2d 79, 81 (Tex.Crim.App. 1981), citing Bray v. State, 531 S.W.2d 633, 635 (Tex.Crim.App. 1976); Rooks v. State, 576 S.W.2d 615, 616 (Tex.Crim.App. 1978)(holding that variance between charging instrument alleging prior conviction in the Criminal District Court of Harris County and proof showing conviction in the 184th District Court of Harris County was not material). The failure to allege the specific district court in which the judgments were rendered is not fatal. Cole, 611 S.W.2d at 81. A variance between the cause number alleged in the enhancement paragraph and the cause number of the prior conviction proved in court is not fatal as long as the defendant was not prevented from identifying the conviction and preparing a defense. Barrett v. State, 900 S.W.2d 748, 752 (Tex.App.--Tyler 1995, pet. ref d). And the failure to allege a cause number at all is not fatal where the State proves up the correct court, county, date, and offense at sentencing. See Barrett, 900 S.W.2d at 752; Straughter v. State, 801 S.W.2d 607, 611 (Tex.App.--Houston [1st Dist.] 1990, no pet.). The State met all of these requirements here.

Appellant admitted he had been convicted of credit card abuse. Having admitted the conviction, he cannot now be heard to complain that he was not put on sufficient notice to know with what he was being charged. See Bevins, 422 S.W.2d at 182. Point of Error Six is overruled. As to the purported fatal variance in the second enhancement paragraph, we conclude the discrepancy is one of semantics. Appellant was sufficiently put on notice of the what crime he committed, even if the enhancement paragraph did not directly track the language of the judgment. Because we conclude the variances were not fatal, we overrule Point of Error Seven. The judgment of the trial court is affirmed.

June 16, 2005

ANN CRAWFORD McCLURE, Justice

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

(Do Not Publish)