Jimmy Woodard, Jr. v. The State of Texas--Appeal from 159th District Court of Angelina County

In The
Court of Appeals
Ninth District of Texas at Beaumont
____________________
NO. 09-04-505 CR
____________________
JIMMY WOODARD, JR., Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 159th District Court
Angelina County, Texas
Trial Court No. CR-24823
MEMORANDUM OPINION

Appellant, Jimmy Woodard, was convicted of deadly conduct. The jury assessed punishment at fifteen years of confinement. Woodard presents five issues for our review. Finding no reversible error, we affirm.

Sufficiency of the Evidence

In his first and second issues, Woodard contends the evidence is legally and factually insufficient to sustain his conviction. In reviewing issues of legal sufficiency, an appellate court views the evidence in the light most favorable to the verdict to determine whether a rational fact finder could have found each element of the offense beyond a reasonable doubt. Swearingen v. State, 101 S.W.3d 89, 95 (Tex. Crim. App. 2003); Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001) (citing Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979)). In Zuniga v. State, 144 S.W.3d 477, 484-85 (Tex. Crim. App. 2004), the Court of Criminal Appeals phrased the standard for a factual sufficiency review as follows:

Considering all of the evidence in a neutral light, was a jury rationally justified in finding guilt beyond a reasonable doubt? However, there are two ways in which the evidence may be insufficient. First, when considered by itself, evidence supporting the verdict may be too weak to support the finding of guilt beyond a reasonable doubt. Second, there may be both evidence supporting the verdict and evidence contrary to the verdict. Weighing all the evidence under this balancing scale, the contrary evidence may be strong enough that the beyond-a-reasonable-doubt standard could not have been met, so the guilty verdict should not stand.

 

An appellate court "must give due deference to the fact finder's determinations concerning the weight and credibility of the evidence and will reverse the fact finder's determination only to arrest the occurrence of a manifest injustice." Swearingen, 101 S.W.3d at 97. It is the sole province of the jury to determine the credibility of witnesses and to weigh contradictory testimony. Cain v. State, 958 S.W.2d 404, 408-09 (Tex. Crim. App. 1997).

Section 22.05(b) of the Texas Penal Code, which sets forth the offense of deadly conduct, provides in part:

(b) A person commits an offense if he knowingly discharges a firearm at or in the direction of:

(1) one or more individuals. . . .

Tex. Pen. Code Ann. 22.05(b) (Vernon 2003).

The complainant, an employee of Wisener Construction, testified that on June 21, 2004, he was working on the roof of a double-wide mobile home. Complainant's work involved the use of a nail gun, which makes a popping noise. Complainant's employer, Kevin Wisener, was working with him, but Wisener left to obtain additional supplies.

According to complainant, he was using the nail gun when he heard yelling across the street. He heard someone yell, "Stop all the MF-ing noise, you MF-er." Complainant identified Woodard in court as the individual who yelled at him. Complainant continued working. Woodard again yelled at him, saying "I told you to stop all that noise, you MF-er." Complainant was seventy-five to one hundred yards from Woodard's house. Woodard yelled the same phrase at complainant a few more times, but complainant continued working. Complainant testified Woodard then yelled, "I'm going to shoot your punk ass, you MF-er," and he began walking toward his house. Complainant saw Woodard enter his house. Complainant began nailing another board to the roof. Complainant testified Woodard then ran out of his house and fired a handgun twice in complainant's direction. When complainant heard the first shot, he began to move toward his ladder so he could get off the roof, and he heard the second shot as he was walking toward the ladder. Complainant climbed down the ladder and went behind the house to get out of sight. Complainant testified he was shaken by the incident, so he went to a neighbor's house to call the sheriff's office, but no one was at home. Complainant then returned to the mobile home and stayed behind it. Complainant continued to watch Woodard's house while trying to stay out of sight. Complainant observed a white Suburban pull into the driveway, and he saw three girls emerge from the Suburban. Complainant also saw a man who had been with Woodard leave in a silver car.

When Wisener returned, complainant told him what had transpired. Wisener called the sheriff's department. Wisener described complainant's demeanor as "wide-eyed and shaky." Complainant and Wisener went to the corner of the house, and they both observed Woodard get into a white Cadillac with some girls. Complainant and Wisener decided to move behind the house to get out of sight. Wisener again called the sheriff's office and informed them Woodard was coming up the driveway. Complainant and Wisener then saw two patrol cars approach.

Complainant testified Woodard did not exit his vehicle until the sheriff removed him. Complainant gave a statement to Deputies Larry Hight and Tyson Hoover. The deputies interviewed Wisener. Wisener testified Woodard pointed at him and "said I was the punk-ass MF that shot at him." Wisener opined that Woodard was "deranged in his mental capacity, from the statements he was making to the deputies and to me."

Deputy Tyson Hoover, a patrol deputy with the Angelina County Sheriff's Office, testified he received a call on June 21, 2004, about discharging firearms. While en route to the mobile home where complainant was working, Deputy Hoover saw Woodard pulling out of the mobile home's driveway. Woodard was driving a white Cadillac, and three girls were in the car with Woodard. Lieutenant Larry Hight, also with the Sheriff's Office, arrived at the same time, and moved his vehicle in front of Woodard's car. Woodard began backing his car up, and Deputy Hoover pulled in behind him. Both officers approached the car and instructed Woodard to exit the vehicle. Deputy Hoover told Woodard he was answering a call regarding discharge of firearms. Woodard initially denied discharging firearms. However, he later said he had been shooting at some dogs that were tearing up his trash.

The officers placed Woodard in Deputy Hoover's patrol car. No weapon was found. After Deputy Hoover and Lieutenant Hight spoke with complainant, Woodard, and the girls, the officers decided to arrest Woodard on the charge of discharge of a firearm. The officers then took Woodard to jail.

Lieutenant Hight testified he received a call regarding discharge of a firearm, and he and Deputy Hoover responded. As Lieutenant Hight approached, he observed Woodard's white Cadillac leaving the driveway of the residence where complainant was working. Lieutenant Hight activated his vehicle's overhead lights and pulled into Woodard's lane of traffic to block him. Woodard stopped, but put his car into reverse and began backing up. Lieutenant Hight drew his weapon and instructed Woodard to get out of the car. Woodard complied. Lieutenant Hight testified Woodard was being "belligerent" and was "mostly cursing." Deputy Hoover placed Woodard in handcuffs and told him he was not yet under arrest.

Lieutenant Hight spoke with complainant. Lieutenant Hight described complainant as "still pretty shook up" and "obviously upset." Complainant told Lieutenant Hight, "the guy shot at him when he was working on the roof of that house. . . ." Complainant also told Lieutenant Hight he was alone when the incident occurred. Complainant told Lieutenant Hight he had been working on the roof of the house, using a nail gun, and a man across the street had yelled at him to stop making noise and cursed. Lieutenant Hight testified complainant told him "the subject" said he would shoot the complainant and called him a "punk ass." Lieutenant Hight testified complainant said he saw the subject go into the house and come out with a gun, and the subject fired at him. Complainant told Lieutenant Hight he heard the shot ricochet through the trees, so he left the roof of the house. Lieutenant Hight described complainant as "very believable." Lieutenant Hight also spoke to the women who were with Woodard. The women told Lieutenant Hight they arrived after the incident had occurred.

Lieutenant Hight told complainant he needed to come to the office later to make a statement. Woodard was placed under arrest. Lieutenant Hight asked Woodard where the weapon was, and Woodard denied having a weapon. Lieutenant Hight stated Deputy Hoover searched Woodard's vehicle, but he did not find a weapon. Woodard later said he had fired a weapon at a dog earlier because the dog was getting into his garbage.

Woodard's sister, Bobbie, testified she and Woodard had exchanged cars, and she returned Woodard's car to him on the day of the incident. Bobbie's two children and Elizabeth Barrett, who was dating Woodard, accompanied her to return the car. When they arrived, Bobbie noticed roofers working across the street. Bobbie and Elizabeth entered the house, and they found Woodard and several girls sleeping inside. Bobbie testified Elizabeth awakened Woodard and became angry because there were girls in the house, so Woodard and Elizabeth began arguing. Bobbie tried to break up the fight, but Elizabeth then came out with a gun and fired twice. Bobbie testified Woodard was outside with them when the shots were fired. Bobbie began backing her car up, and Elizabeth then "took off running through the woods. She didn't have the gun whenever she ran back out to the road to stop me." Bobbie then picked up Elizabeth, dropped her off at Joc Stop, and went home. Bobbie testified she never saw Woodard with a pistol or any type of gun.

Elizabeth Barrett testified she accompanied Bobbie to Bobbie's mother's home on the day of the incident. Elizabeth testified Bobbie was driving Woodard's vehicle because Bobbie and Woodard had switched cars the night before. Elizabeth testified when they entered the house, three girls were inside, and she became angry. Two girls were in bed with Woodard, and one was in another bed. Elizabeth then awakened Woodard, who told her to "tell the roofers across the street to turn the nail guns off." Elizabeth then testified,

[s]o I told him that if he didn't get them out of the yard, that I was going to do something crazy and might get a gun or something. So I went in the kitchen and - because they keep this gun in there that they shoot the dogs - I mean they shoot at the dogs that try to kill their chickens.

 

Elizabeth got a gun, told the girls they needed to leave, and fired a shot. Elizabeth testified Woodard then walked over "to yell at the roofers . . . to tell them what was going on. And, you know, he was trying to yell at them to turn the machines off so he could tell them."

Elizabeth and Woodard continued arguing, and she fired again towards the woods. Elizabeth testified,

[a]nd then after that, I mean, I freaked out and . . . I took off and . . . I ran through the woods and I . . . chunked the gun, like, into the woods. And . . . I got . . . halfway because I was going to run to the Joc Stop. But then I turned around because there was . . . another trail. And, like, I had jumped in the car with his sister.

 

Elizabeth then dropped Bobbie off at Joc Stop. Elizabeth had already left when the sheriff's deputies arrived, but she later gave them a written statement. Elizabeth denied seeing Woodard with a weapon, but she stated Woodard's parents kept a gun to protect their chickens from dogs. She also stated Woodard never removed the weapon from her hand.

In summary, complainant testified Woodard threatened to shoot complainant, emerged from his house with a weapon, and fired twice in complainant's direction. Both Wisener and Lieutenant Hight testified complainant was shaken and upset after the incident. However, Bobbie Woodard and Elizabeth Barrett both testified it was Barrett who fired the gun. The jury was required to determine the credibility of the various witnesses and resolve the conflicts in the testimony. Viewing the record in the light most favorable to the verdict, a rational jury could have concluded beyond a reasonable doubt that Woodard was guilty of deadly conduct. See Tex. Pen. Code Ann. 22.05(b) (Vernon 2003). The evidence is legally sufficient to support the verdict. Furthermore, considering all of the evidence in a neutral light, the jury was rationally justified in finding proof of guilt of deadly conduct beyond a reasonable doubt. See id. The evidence supporting the verdict is not too weak, nor is the contrary evidence, including the testimony of Bobbie and Elizabeth, so strong that the burden of proof could not be met. Woodard's first and second issues are overruled.

Lack Of A Hearing

In his third issue, Woodard argues that during the punishment phase of the trial, the court erred in failing to hold a hearing outside the jury's presence to determine whether the evidence showed his guilt of an extraneous offense beyond a reasonable doubt. Article 37.07 of the Texas Code of Criminal Procedure does not require the trial court to conduct a separate hearing, particularly when no objection is made to the evidence offered. See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2005); Welch v. State, 993 S.W.2d 690, 697 (Tex. App.--San Antonio 1999, no pet.)("Neither the statute nor precedent require a hearing."). Woodard's third issue is overruled.

Lack Of An Instruction

In his fourth issue, Woodard contends the trial court erred in failing to give a reasonable doubt instruction to the jury regarding evidence of an extraneous offense during the punishment phase. Deputy Hoover testified during the punishment phase, and he described Woodard as "agitated and somewhat uncooperative" when he put Woodard in the car. After Deputy Hoover and Lieutenant Hight completed their investigation and told Woodard he was going to jail, they got into the car and attempted to leave. Woodard then

became very violent: cussing, kicking the window bars in the car, hitting the cage, kicking the cage. And so we stopped. I made it a hundred, 200 yards down the road. And myself and Lieutenant Hight tried to speak with him, calm him down. That didn't work. He just kept cussing at us and kicking the doors on the car.

 

Deputy Hoover testified Woodard threatened the officers that if they opened the door, "the fight was going to be on." Deputy Hoover and Lieutenant Hight turned on their overhead lights and sirens and notified the jail they were on their way. The officers asked that they "have some people waiting to help us when we got there." Deputy Hoover also stated Woodard hit the car, the Plexiglas cage, and the window with his handcuffs. Woodard's behavior continued all the way to the jail.

According to Deputy Hoover, after they arrived at the jail, the sheriff tried to talk to Woodard and calm him down, but Woodard continued to yell and curse. Deputy Hoover characterized Woodard as "one of the most violent people I've dealt with in working for the sheriff's office." On cross-examination, Hoover testified Woodard was originally charged with resisting arrest, but that charge was not pursued. According to Deputy Hoover, Woodard stated, "if he was going to jail, he was going for something good. He wasn't going for just no reason."

Woodard argues on appeal that Deputy Hoover's testimony regarding Woodard resisting arrest was evidence of an extraneous offense and, therefore, the trial court was required to give an instruction to the jury "that they cannot consider evidence of any extraneous offense unless it finds beyond a reasonable doubt that Defendant was guilty." Woodard also contends Deputy Hoover's testimony that Woodard was "one of the most violent people I've dealt with in working for the sheriff's office" was heard by the jury without "any safeguards outlined in Mitchell" and contributed to Woodard's high sentence. See Mitchell v. State, 931 S.W.2d 950 (Tex. Crim. App. 1996). Woodard's counsel did not object to any of Deputy Hoover's testimony during the punishment phase, nor did he object to the charge or request an instruction at trial.

Article 37.07, section 3(a)(1) of the Texas Code of Criminal Procedure provides in part:

[E]vidence may be offered by the state and the defendant as to any matter the court deems relevant to sentencing, including but not limited to the prior criminal record of the defendant, his general reputation, his character, an opinion regarding his character, the circumstances of the offense for which he is being tried, and, notwithstanding Rules 404 and 405, Texas Rules of Evidence, any other evidence of an extraneous crime or bad act that is shown beyond a reasonable doubt by evidence to have been committed by the defendant or for which he could be held criminally responsible, regardless of whether he has previously been charged with or finally convicted of the crime or act.

 

Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2005). Deputy Hoover described Woodard as "one of the most violent people," and described his conduct in resisting arrest. Generally, opinion testimony concerning the character of the defendant is not "extraneous offense" evidence under section 37.07 requiring a separate burden of proof instruction. See id.; see also, generally Bluitt v. State, 137 S.W.3d 51, 54 (Tex. Crim. App. 2004) (because prior criminal record of defendant is not included with extraneous offenses, legislature did not intend to require same instruction for criminal record as for extraneous offenses). Conduct during an arrest immediately following an offense may in some cases constitute circumstances of the offense on trial rather than an "extraneous offense." See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Sup. 2005); see also, e.g., Garza v. State, 2 S.W.3d 331 (Tex. App.--San Antonio 1999, pet. ref'd)("same transaction contextual evidence"). The parties do not argue that possibility in this case. In response to Woodard's argument that the trial court erred by failing to give a reasonable doubt instruction during the punishment phase on the "extraneous offense" of "resisting arrest," the State contends Woodard must demonstrate egregious harm because he did not object to the charge or request a reasonable doubt instruction. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984).

The standard of review to be applied is controlled by whether an objection was made to the charge error. Almanza, 686 S.W.2d at 171. When, as here, no objection to the charge error was made at trial, an appellate court will reverse only if the error caused egregious harm. Id. "The harm which must be considered is the impact of the omission in the jury charge of a reasonable-doubt instruction." Ellison v. State, 86 S.W.3d 226, 228 (Tex. Crim. App. 2002). In assessing the degree of harm, an appellate court must examine the entire jury charge, the state of the evidence, the arguments of counsel, and any other relevant information from the record. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza, 686 S.W.2d at 171. Egregious harm exists if the defendant did not receive a fair and impartial trial as a result of the omission of the instruction; in this case, we consider particularly whether the error made the case for punishment clearly and substantially compelling. See Bluitt, 137 S.W.3d at 53; Hutch, 922 S.W.2d at 171 (citing Almanza, 686 S.W.2d at 172).

The State did not request the maximum sentence or argue the sentence should be toward the higher end of the punishment range. Woodard had pled true to the enhancement allegation of a prior conviction for felony assault on a peace officer, and the State argued the prior offense should be considered in assessing punishment. See Tex. Code Crim. Proc. Ann. art. 37.07, 3(a)(1) (Vernon Supp. 2005). Counsel for the State also emphasized Woodard's conduct during his arrest and Deputy Hoover's characterization of him and he stated the jury should consider it when assessing punishment. The trial record does not reflect inconsistent evidence of Woodard's conduct after the arrest. The Court of Criminal Appeals has said, "Egregious harm is a difficult standard to prove and such a determination must be done on a case-by-case basis." Hutch, 922 S.W.2d at 171. In Hutch, the Court explained that in determining whether egregious harm occurred, a court is to consider whether the error related to a contested issue, or instead to undisputed, uncontradicted evidence. Id. at 171-72 (quoting Kucha v. State, 686 S.W.2d 154, 156 (Tex. Crim. App. 1985)). Considering the state of the evidence here, the nature of the offense, Woodard's prior conviction for another violent felony offense of assault on a peace officer, the arguments of counsel, and the nature of the asserted charge error, we conclude the omission of the instruction did not deprive defendant of a fair and impartial trial. See Hutch, 922 S.W.2d at 171 (citing Almanza, 686 S.W.2d at 171). Woodard has not demonstrated egregious harm from the asserted charge error. See id. The fourth issue is overruled.

Voir Dire

In his fifth issue, Woodard contends the State did not voir dire the jury concerning the punishment range he faced if the enhancement for the prior felony assault were used. The range of punishment for deadly conduct without enhancement is two to ten years of confinement and a fine not to exceed $10,000.00, but the enhancement increases the range of punishment to two to twenty years of confinement and a fine not to exceed $10,000.00. See Tex. Pen. Code Ann. 12.33, 12.34, 12.42, 22.05(e) (Vernon 2003 and Supp. 2005). Woodard contends he "was harmed because he was sentenced to 15 years imprisonment, which was 5 years longer than the range for which [the jurors] were questioned." (1)

Defense counsel did not object on that basis during the State's voir dire, and defense counsel set forth the same punishment range in his voir dire as that discussed by the State. After voir dire, defense counsel moved to strike the enhancement portion of the indictment "because the State failed to voir dire the jury on that . . .; [the prosecutor] said the range of punishment was the third-degree felony from two to ten years." The trial court took the matter under advisement and allowed counsel one week to provide the court with authority supporting his argument. The record reflects the trial court did not further address defense counsel's motion to strike, and defense counsel did not object to this failure. See Tex. R. App. P. 33.1(a)(2). Woodard argues the lack of voir dire on punishment with enhancement was fundamental error. However, he cites no authorities in support of this contention. Both sides may inform the jury panel of the range of punishment with enhancement. Frausto v. State, 642 S.W.2d 506, 509 (Tex. Crim. App. 1982). Woodard cites no authority suggesting the State must do so. If Woodard wanted the jury to be informed or questioned, defense counsel could have done so during his own voir dire. See id. Woodard's fifth issue is overruled. The judgment of the trial court is affirmed.

AFFIRMED.

DAVID GAULTNEY

Justice

Submitted on May 26, 2005

Opinion Delivered August 10, 2005

Do Not Publish

Before McKeithen, C.J., Gaultney and Kreger, JJ.

1. Woodard does not contend the jury was improperly charged regarding the punishment range.