Martha Lambert v. The State of Texas--Appeal from 82nd District Court of Falls County

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Lambert-M v. State /**/

IN THE

TENTH COURT OF APPEALS

 

No. 10-95-033-CR

 

MARTHA LAMBERT,

Appellant

v.

 

THE STATE OF TEXAS,

Appellee

 

From the 82nd District Court

Falls County, Texas

Trial Court # 6605

 

O P I N I O N

 

A jury convicted Martha Lambert of aggravated assault and assessed punishment at ten years' probation and a $10,000 fine. Tex. Penal Code Ann. 22.02 (Vernon 1994). She brings eight points on appeal, each complaining of alleged errors in the jury charge. We will affirm.

In point one, Lambert complains that the court erred in its placement of the definition of "reasonable doubt" after the other definitions and the application paragraphs. She claims that "by placing all definitions except the burden of proof definition before the application paragraphs, the burden of proof is not placed properly on the State in the application paragraphs, because the jury is not given the definition of the burden of proof before being asked to render a decision in the application paragraphs, and causes the burden of proof to be lessened and considered less important because it is not placed before the application paragraphs, as are all the definitions of other key words in the charge." Lambert does not cite any authority to support her contention. The State agrees that a proper definition of "reasonable doubt" that is used in the application of the law to the facts is required if a charge is to be sufficient to sustain a conviction. Geesa v. State, 820 S.W.2d 154, 162 (Tex. Crim. App. 1991); Polk v. State, 865 S.W.2d 627, 632 (Tex. App. Fort Worth 1993, pet. ref'd); Hammons v. State, 856 S.W.2d 797, 804 (Tex. App. Fort Worth 1993, pet. ref'd). However, it contends that there is no "magic" place in the charge for the definition. Id.

Lambert does not assert that the definition was not in compliance with Geesa; she merely complains of its placement in the charge. We agree with the State and with the decisions of the Fort Worth Court of Appeals which hold that there is no error in a charge that properly defines "reasonable doubt" and applies it to the facts in the case, even if the definition is not in a specific place in the charge. Polk, 865 S.W.2d at 632; Hammons, 856 S.W.2d at 804. Point one is overruled.

In points five through eight, Lambert complains of the following instruction submitted to the jury in the charge: "You are further instructed that the specific intent to kill may be inferred, if any, from the use of a deadly weapon, unless it is reasonably apparent that death or serious bodily injury could not result." Assuming Lambert's points are meritorious, she can show no harm from this instruction because she was not found guilty of murder, but of aggravated assault. Although intent to kill may be relevant to the offense of murder, it is not relevant to the offense of aggravated assault. Tex. Penal Code Ann. 19.02(b)(2), 22.02. Because the jury convicted Lambert of the latter, no jury finding necessary to her conviction rested upon a finding of intent to kill. Id. Points five through eight are overruled.

Lambert's three remaining points complain of the following instruction in the jury charge: "You are further instructed that you may consider any and all events that occurred before, during, and after the commission of an offense, if any, in determining a defendant's intent, if any." Each of the complaints directed at this instruction will be discussed separately below.

In point two, Lambert alleges that the instruction should not be given to a jury for its determination of whether the elements of an offense occurred beyond a reasonable doubt, but rather, is to be utilized by an appellate court for its determination of the sufficiency of the evidence to support a conviction. She cites only Moss to support her contention. Moss v. State, 850 S.W.2d 788 (Tex. App. Houston [14th Dist.] 1993, pet. ref'd). She apparently argues that, although "[t]he jury is entitled to consider events that occurred before, during, and after the commission of the offense," the court may not so instruct the jury; and only in the appeals court's review, in viewing the evidence in the light most favorable to the verdict, does the jury's prerogative to consider such matters come into play. See id at 796. We reject this argument as illogical and overrule point two.

Lambert contends in her third point that the instruction invades the province of the jury by instructing it what evidence to consider and the manner it is to consider such evidence. Lambert cites no authority supporting her contention, and we reject her argument. The instruction clearly states that the "jury may consider any and all events;" it does not tell the jury that it must consider anything, but only that it "may." This instruction merely aids the jury in completing its task, i.e., analyzing the evidence presented at trial to arrive at a reasonable conclusion based upon the evidence. Campbell v. State, 610 S.W.2d 754, 756 (Tex. Crim. App. 1980). We overrule point three.

Finally, Lambert asserts that the instruction is an impermissible comment on the weight of the evidence because the court "emphasiz[ed] through its instruction how the jury could find intent on the part of the defendant, [and] made its feelings known to the jury as to the issue of intent." Lambert relies solely upon Browning v. State, 720 S.W.2d 504, 507 (Tex. Crim. App. 1986), and argues that, "when the trial court, the only source of the law the jury has, picks out only one such inference and instructs the jury that that one, though rebuttable, is a presumption provided by law, the court gives the force of law to that one possible inference." In Browning, the court instructed the jury that "[o]ur law provides that the act of breaking and entering at nighttime raises a presumption that the act was done with the intent to commit theft." Id. at 505. The Court of Criminal Appeals held that instructing the jury on the presumption was a comment on the weight of the evidence because it instructed the jury that, if it found that he had entered the home at night, they could presume intent and disregard appellant's defensive evidence altogether. Id. at 508.

However, the facts in Browning are distinguishable from the facts here. The court's instruction did not refer to any presumption or any specific evidence introduced by either party and did not "pick out only one inference" the jury could have made; rather, the instruction merely advised the jury of the broad categories of evidence it could review as it determined Lambert's "intent, if any." Id. The instruction did not comment on any evidence and was a proper instruction. Point four is overruled, and the judgment is affirmed.

BOB L. THOMAS

Chief Justice

 

Before Chief Justice Thomas,

Justice Cummings, and

Justice Vance

Affirmed

Opinion delivered and filed January 17, 1996

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