James Richard Waters v. The State of Texas--Appeal from 77th District Court of Limestone County

IN THE

TENTH COURT OF APPEALS

No. 10-90-191-CR

JAMES RICHARD WATERS,

Appellant

v.

THE STATE OF TEXAS,

Appellee

From the 77th District Court

Limestone County, Texas

Trial Court # 7577-A

O P I N I O N

Appellant argues that the evidence was insufficient to support his conviction for aggravated assault. He also complains about improper questions, the charge, and the deadly weapon finding. We affirm.

On the night of July 2, 1990, outside an establishment called the House of Soul, several groups of people gathered to drink and socialize. Marilyn Lacey, Lonzo Anderson and several others were sharing some of Anderson's whiskey. Much to Lacey's dismay, Anderson apparently decided to put up the whiskey and leave. While Lacey was attempting to persuade Anderson to share more whiskey, Appellant interfered and told Lacey that she could not have any more of Anderson's whiskey. Lacey informed Appellant that her conversation with Anderson was none of his business the testimony is conflicting about whether Lacey cursed Appellant and Appellant hit her and knocked her down.

John Gamble came to Lacey's defense and began fist fighting with Appellant. The testimony is unclear about who started the fight, but Gamble admitted that he may have thrown the first punch. During the altercation, which lasted approximately five minutes, Appellant pulled a knife from his pocket and cut Gamble three times. Gamble then ran to a nearby gas station. Anderson claimed that Gamble had a knife, too, but Gamble and Lacey denied that allegation.

Point four is that the evidence was insufficient to support Appellant's conviction. The question is whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Butler v. State, 769 S.W.2d 234, 239 (Tex. Crim. App. 1989). Aggravated assault is intentionally or knowingly causing serious bodily injury to another. Tex. Penal Code Ann. 22.02(a)(1) (Vernon Supp. 1991). Based on the record as a whole, any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt.

Appellant also argues under point four that he conclusively proved he acted in self-defense. Section 9.31 of the Penal Code provides: "[A] person is justified in using force against another when and to the degree he reasonably believes the force is immediately necessary to protect himself against the other's use or attempted use of unlawful force." Id. at 9.31(a) (Vernon 1974). Based on the record as a whole, Appellant did not conclusively establish that he acted in self defense or that the force he used was immediately necessary to protect himself. The jury obviously resolved the fact issue of whether he acted in self-defense in the State's favor. Point four is overruled.

Appellant contends in point one that the prosecutor asked improper questions suggesting that Appellant had been in prison before. Specifically, he complains about the prosecutor's: (1) asking Gamble whether he had run into him at prison; (2) linking him to Gator Brown, a known drug dealer; (3) telling the jury during the punishment phase that he had previously been charged with attempted murder; and (4) introducing into evidence two indictments which showed that he had previously been charged with serious offenses, but convicted of lesser offenses.

Asking an improper question does not constitute reversible error unless there is obvious harm to the defendant. Yarbrough v. State, 617 S.W.2d 221, 228 (Tex. Crim. App. [Panel Op.] 1981). Furthermore, any error caused by an improper question will generally be cured by an instruction to disregard. Brown v. State, 692 S.W.2d 497, 501 (Tex. Crim. App. 1985). Merely asking an improper question will require a reversal only when the question alone is clearly calculated to inflame the minds of the jury and is of such a character as to suggest the impossibility of withdrawing its impression on the jury. Id.

Appellant never objected to the question to Gamble. His only objection about linking him to Brown was, "Unless Mr. Anderson knows of his own personal knowledge, he's not qualified to answer that question." Furthermore, during voir dire, Appellant's attorney told the panel:

Now, I'm going to be real plain-spoken about this. The folks that are involved in this case are the witnesses, [Appellant], victim. They were down on The Beat. They're all black. They're guys that you're probably not going to find in the P.T.A. meeting. They're not going to be sitting on the school board.

These are guys that may have had some problems in their lives. May have had some troubles in their lives. They may not be people that you like. All the people involved in this case may not be people that you would want to be your next door neighbor.

Based on the record as a whole, and particularly in light of the comments by Appellant's attorney during voir dire, the questions were not clearly calculated to inflame the minds of the jury, of such a character as to suggest the impossibility of withdrawing their impression on the jury, or obviously harmful to Appellant.

Article 37.07 of the Code of Criminal Procedure provides that evidence about "any matter the court deems relevant to sentencing, including the prior criminal record of the defendant," is admissible at the punishment phase. Tex. Code Crim. Proc. Ann. art. 37.07 3(a) (Vernon Supp. 1991). The instances complained about involved situations "relevant to sentencing" where a final adjudication of Appellant's guilt had been made, albeit of a lesser offense than initially charged. Point one is overruled.

Point two is that the punishment charge confused the jury. The court instructed the jury, "If you find beyond a reasonable doubt that [Appellant] used a deadly weapon in the commission of the offense of aggravated assault, you will answer `yes' in the blank provided below. If you do not so find, you shall answer `no' in the blank provided below." The verdict form, however, did not contain "yes" or "no" blanks for a deadly weapon finding. Instead, it was as follows:

WE, the jury, having found [Appellant] Guilty of the offense of Aggravated Assault, now assess punishment of [Appellant] at confinement in [prison] for a term of years (not less than 2 years or more than 10 years). We further assess a fine of

$ .

PRESIDING JUROR

We, the jury, having found [Appellant] GUILTY of the offense of Aggravated Assault, find that a deadly weapon was used or exhibited in said offense.

PRESIDING JUROR

We, the jury, having found [Appellant] GUILTY of the offense of Aggravated Assault, find no use of a deadly weapon in said offense

PRESIDING JUROR

Jurors sent two notes to the court. The first one asked, "Where are the yes or no blanks - cannot find where it states there is one." The second note read, "We the jury asses[s] 10 yrs[.] w/ a deadly weapon - no fine." Admitting that there was some confusion in the verdict form, the court instructed the jury to "simply follow the language contained in the verdict form the best that you can." The result was that the jury used the first two verdict forms, assessing exactly what the note indicated: ten years in prison, no fine, and a deadly weapon finding. Accordingly, we hold that any confusion due to the absence of blanks on the verdict form did not contribute to Appellant's punishment beyond a reasonable doubt. See Tex. R. App. P. 81(b)(2). The second point is overruled.

Using civil terms to attack the sufficiency of the evidence, Appellant complains in point three that there was no evidence, or insufficient evidence, to support the deadly weapon finding. He also asserts that the finding was against the great weight and preponderance of the evidence.

A "deadly weapon" is:

(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or

(B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury.

Tex. Penal Code Ann. 1.07(a)(11)(A),(B) (Vernon 1974). Although a knife is not per se a deadly weapon, it can be shown to be a deadly weapon by the manner of its use or capacity to cause serious bodily injury. Morales v. State, 633 S.W.2d 866, 868 (Tex. Crim. App. [Panel Op.] 1982).

The wounds inflicted on the victim are an important factor to consider in determining whether a weapon is a deadly weapon. Denham v. State, 574 S.W.2d 129, 130 (Tex. Crim. App. 1978). Here, Marilyn Lacey testified that Appellant used a knife he pulled from his pocket to cut John Gamble three times. She claimed that Gamble was bleeding "real bad . . . sitting there bleeding to death." Officer Dabney noted that Gamble had a six-inch cut and had to be taken to the hospital for sutures. At the hospital, Gamble received between forty and forty-five stitches, but did not need a blood transfusion or additional treatment. However, the wounds were of such a nature that approximately eight months after the incident, Appellant was able to open his shirt and show the jury where he had been injured.

Based on the record as a whole, we hold that, despite the absence of the knife and photographs of the injuries, the evidence was sufficient to support a finding that the knife was a deadly weapon. See Morales, 633 S.W.2d at 868. Point three is overruled.

Affirmed.

BOB L. THOMAS

Chief Justice

Before Chief Justice Thomas,

Justice Cummings and

Justice Vance

Affirmed

Opinion delivered and filed October 16, 1991

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