Pryor v. State

Full title: DARYL CHRISTOPHER PRYOR, Appellant v. THE STATE OF TEXAS, Appellee

Court: Court of Appeals of Texas, Fifth District, Dallas

Date published: Apr 6, 2004

Nos. 05-03-00794-CR, 05-03-00795-CR (Tex. App. Apr. 6, 2004)

Opinion

Nos. 05-03-00794-CR, 05-03-00795-CR.

Opinion issued April 6, 2004. DO NOT PUBLISH. Tex.R.App.P. 47.

On Appeal from the Criminal District Court No. 5, Dallas County, Texas, Trial Court Cause Nos. F03-00730-Wl F03-00731-WL. Affirmed.

Before Justices WHITTINGTON, LANG, and LANG-MIERS.

OPINION

Opinion By Justice WHITTINGTON.

Daryl Christopher Pryor appeals his convictions for assault of a public servant and attempting to take a peace officer's firearm. See Tex. Pen. Code Ann. §§ 22.01(b)(1) 38.14(b) (Vernon 2003 Supp. 2004). After finding appellant guilty of both offenses, the jury assessed punishment, enhanced by two prior convictions, at thirty-seven years' and twenty years' confinement, respectively. In nine points of error, appellant contends (i) the evidence is factually insufficient to support his conviction for attempting to take a peace officer's firearm, (ii) the trial judge erred in overruling appellant's motion to exclude certain evidence, and (iii) the trial judge erred in incorrectly instructing or failing to instruct the jury on various issues in the jury charge. We affirm the trial court's judgments.

Factual Sufficiency

In his first point of error in cause number 05-03-00795-CR, appellant claims the evidence is factually insufficient to show he attempted to take a peace officer's firearm. Appellant claims, without citing any authority, that "take" means to "remove from the other's possession." Although appellant admits he "attempted to control [the officer's] gun hand in order to point the gun at the officer," he argues the evidence is factually insufficient to support his conviction because the State did not show he tried to remove the gun from the police officer's possession. In conducting a factual sufficiency review, we apply well known standards. See King v. State, 29 S.W.3d 556, 563 (Tex.Crim. App. 2000); Johnson v. State, 23 S.W.3d 1, 7 (Tex.Crim.App. 2000); Cain v. State, 958 S.W.2d 404, 407 (Tex.Crim.App. 1997); Clewis v. State, 922 S.W.2d 126, 133 (Tex.Crim.App. 1996). We do not judge the credibility of witnesses in determining factual sufficiency. Nolasco v. State, 970 S.W.2d 194, 196 (Tex. App.-Dallas 1998, no pet.); see Dillard v. State, 931 S.W.2d 689, 696 (Tex. App.-Dallas 1996, pet. ref'd, untimely filed). Rather, we defer to the jury's findings so as to avoid substituting our judgment for that of the jury. See King, 29 S.W.3d at 563; Johnson, 23 S.W.3d at 7; Jones v. State, 944 S.W.2d 642, 648 (Tex.Crim.App. 1996). Our review is only to prevent a manifestly unjust result. See Cain, 958 S.W.2d at 407; Clewis, 922 S.W.2d at 135. Sufficiency of the evidence should be measured by the elements of the offense as defined by the hypothetically correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex.Crim. App. 1997); see Villani v. State, 116 S.W.3d 297, 307 (Tex. App.-Houston [14th Dist.] 2003, pet. ref'd) (applying Malik to factual sufficiency review); Weyandt v. State, 35 S.W.3d 144, 149 (Tex. App.-Houston [14th Dist.] 2000, no pet.) (same); see also Adi v. State, 94 S.W.3d 124, 130 (Tex. App.-Corpus Christi 2002, pet. ref'd) (applying hypothetically correct jury charge to factual sufficiency review and noting Texas Court of Criminal Appeals has apparently not addressed question of whether Malik applies to factual sufficiency review). Such a charge would accurately set out the law, be authorized by the indictment, not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describe the particular offense for which the defendant was tried. Malik, 953 S.W.2d at 240. This standard ensures that a reversal is reserved for those situations in which there is an actual failure in the State's proof of the crime rather than a mere error in the jury charge submitted. See Malik, 953 S.W.2d at 240. To convict appellant of the charged offense, the State was required to show appellant "intentionally or knowingly and with force" attempted to take a firearm from a peace officer with the intent of harming the officer. See Tex. Pen. Code Ann. § 38.14(b). Because the term "take" is not defined in the penal code, we use the common, usual meaning of the word. See Garcia v. State, 887 S.W.2d 846, 859 (Tex.Crim.App. 1994) ("Words which are not defined statutorily are to be given their usual meanings, and no specific instructions are necessary."). The most commonly recognized definitions of the word "take" are to "get into one's hands or into one's possession, power, or control by force or stratagem;" "to lay or get a hold of with arms, hands, or fingers;" or "to seize or capture physically." See Webster's 3^rd Int'l Dictionary 2329-30 (1981). Appellant is presumed to know the officer was a peace officer if he was wearing his uniform or badge or if he had identified himself as a peace officer to appellant. See Tex. Pen. Code Ann. § 38.14(c). Proof of knowledge or intent is an inference that may be drawn by the factfinder both from direct evidence and from evidence of the circumstances surrounding the act. See Brown v. State, 122 S.W.3d 794, 800 (Tex.Crim.App. 2003) (jury may infer intent from any facts in evidence), cert. denied, 72 USLW 3598 (2004); Wolfe v. State, 917 S.W.2d 270, 275 (Tex.Crim.App. 1996) (knowledge is inference drawn by trier of fact from all circumstances); Dillon v. State, 574 S.W.2d 92, 94-95 (Tex.Crim. App. [Panel Op.] 1978) (same). Therefore, a jury can infer knowledge or intent from the acts, conduct, and remarks of the accused and from the surrounding circumstances. Hernandez v. State, 819 S.W.2d 806, 810 (Tex.Crim.App. 1991); LaPoint v. State, 750 S.W.2d 180, 182 (Tex.Crim.App. 1986); see Breckenridge v. State, 40 S.W.3d 118, 128 (Tex. App.-San Antonio 2000, pet. ref'd) (jury could have inferred requisite intent from appellant's conduct and surrounding circumstances). In this case, the evidence showed that on October 5, 2002, Officer Michael Lambert and his partner, Officer Doug Craig, were on patrol in a marked squad car when they turned onto Pueblo Street in south Dallas. Both officers were in full uniform. Lambert testified he used to work the area and had made numerous drug arrests there. Lambert saw two men, one of whom was appellant, standing together under a group of trees. Lambert saw appellant walk away, then throw something on the ground. Lambert told Craig to speed up so he could catch appellant. When they reached appellant, Lambert jumped out of the car, put appellant's hand on the hood of the car, and began to pat him down. Lambert found a small blue baggy containing a white, rock-like substance. Craig asked appellant his name. The officers returned to the car to run the name appellant had given them through the computer. Because the name would not pull up, Craig asked appellant for his real name. Appellant responded it was his name and asked why they were bothering him. He then turned and ran. Officer Lambert chased appellant, saying, "Stop. Police." When he cornered appellant in an alleyway, appellant tried to climb the fence. Lambert tackled him and pulled him down. Appellant then began to kick and punch Lambert. The officer fell into a barbed wire fence, cutting his skin repeatedly. He sprayed appellant with mace, but appellant took off his shirt and ran away a second time. Lambert chased appellant and found him under a nearby house. Lambert drew his gun in his right hand and ordered appellant to come out. After several minutes, appellant came out from under the house. With one hand, he grabbed Lambert's right hand His other hand grabbed Lambert's right arm. Appellant began bending the gun toward Lambert and said, "I'm not going back . . . I'll kill you." Lambert struggled with appellant and decided to fire his gun. Although the sound of the shot briefly stunned appellant, he lunged at the officer and continued to fight. Officer Craig arrived and attempted to help subdue appellant. When other officers arrived, appellant was finally subdued and handcuffed. Lambert had numerous cuts where appellant pushed him into a barbed wire fence. A portion of the barbed wire lodged in Lambert's wrist causing it to swell. His right index finger was swollen and had to be splinted at the hospital. After considering this and other evidence, the jury convicted appellant of attempting to take a firearm from a peace officer. After reviewing the evidence in this case and giving due deference to the jury's assessment of the witnesses' credibility and resolution of evidentiary conflicts, we conclude the evidence is factually sufficient to support his conviction. In reaching this conclusion, we reject appellant's argument that, "in the present context the word ["take"] means to remove from the other's possession." Appellant argues he did not attempt to take the firearm away from Lambert but only attempted to control the officer's gun hand However, the term "take" does not require exclusive possession; rather, it means to get into one's hands or possession, power, or control. See Webster's 3^rd Int'l Dictionary 2329-30 (1981). Because the evidence in this case showed appellant attempted to "control" or "get a hold" of Lambert's firearm, we conclude appellant's argument lacks merit. We overrule appellant's first point of error in cause number 05-03-00795-CR.

Jury Charge

In his first three points of error under cause number 05-03-00794-CR and his second, third, and fourth points of error under cause number 05-03-00795-CR, appellant claims the judge erred in (i) instructing the jury that intent could be inferred from acts done, words spoken, or both, (ii) instructing the jury on reasonable doubt, (iii) failing to instruct the jury on a statutory presumption, and (iv) failing to define "attempt" in the abstract section of the charge. Initially, we note that appellant did not object to the charge as given. Because he did not object, we will reverse only if the harm is so egregious that appellant was denied a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 174 (Tex.Crim.App. 1984) (op. on reh'g). In making this determination, we examine the entire charge, the state of the evidence, including any contested issues, arguments of counsel, and other relevant information. Patrick v. State, 906 S.W.2d 481, 492 (Tex.Crim.App. 1995).

Instruction on Intent

In both cases, appellant claims the trial judge erred in instructing the jury that intent could be "inferred from acts done, words spoken or both." We agree. See Brown, 122 S.W.3d at 802 (holding instruction marginally falls on wrong side of improper judicial comment scale because it is "simply unnecessary and fails to clarify the law for the jury."). In Brown, the court of criminal appeals considered the "intent" instruction in a capital murder case in which intent was "the only issue" in the case. Brown, 122 S.W.3d at 803. After holding the instruction was error, the court concluded, "Normally, we would remand to the court of appeals so that it could determine if there was harm, but because this instruction was benign, albeit improper, we hold that the error was not, in any sense, harmful under Almanza." Brown, 122 S.W.3d at 803-04. We similarly conclude that although the trial judge erred, the instruction was benign and harmless. We overrule appellant's first point of error under cause number 05-03-00794-CR and his second point of error under cause number 05-03-00795-CR.

Instruction on Reasonable Doubt

In both cases, appellant claims the trial judge erred in instructing the jury that "[i]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all `reasonable doubt' concerning the defendant's guilt," Appellant argues this instruction violates the holding of the court of criminal appeals in Paulson v. State, 28 S.W.3d 570, 573 (Tex.Crim.App. 2000) and constitutes egregious harm. In Paulson, the court of criminal appeals stated "the better practice is to give no definition of reasonable doubt at all to the jury." Paulson, 28 S.W.3d at 573. However, the complained-of language in this charge does not define what is meant by reasonable doubt. Rather, it instructs the jury that it is the State's burden to prove beyond a reasonable doubt the elements of the crime for which appellant was charged. Therefore, we conclude the instruction does not violate Paulson and does not constitute error. See O'Canas v. State, No. 05-02-01638-CR, slip op. at 11, 2003 WL 22701240, at *7 (Tex. App.-Dallas Nov. 17, 2003, pet. struck); Ochoa v. State, 119 S.W.3d 825, 829 (Tex. App.-San Antonio 2003, no pet.); Torres v. State, 116 S.W.3d 208, 212 (Tex. App.-El Paso 2003, no pet.); Fluellen v. State, 104 S.W.3d 152, 163-64 (Tex. App.-Texarkana 2003, no pet.); Minor v. State, 91 S.W.3d 824, 828-29 (Tex. App.-Fort Worth 2002, pet. ref'd); Carriere v. State, 84 S.W.3d 753, 759-60 (Tex. App.-Houston [1st Dist.] 2002, pet. ref'd). We overrule appellant's second point of error under cause number 05-03-00794-CR and his third point of error under cause number 05-03-00795-CR.

Failure to Instruct on Statutory Presumption

In his third point of error in cause number 05-03-00794-CR, appellant claims the trial judge reversibly erred in failing to instruct the jury on section 2.05 of the penal code after giving a section 22.02(c) instruction on a presumed fact. Section 2.05 provides that if a statute establishes a presumption with respect to any fact, the issue must be submitted to the jury and the trial judge must charge the jury:

(A) that the facts giving rise to the presumption must be proven beyond a reasonable doubt;

(B) that if such facts are proven beyond a reasonable doubt the jury may find that the element of the offense sought to be presumed exists, but it is not bound to so find;

(C) that even though the jury may find the existence of such element, the state must prove beyond a reasonable doubt each of the other elements of the offense charged; and

(D) if the jury has a reasonable doubt as to the existence of a fact or facts giving rise to the presumption, the presumption fails and the jury shall not consider the presumption for any purpose.

Tex. Pen. Code Ann. § 2.05 (Vernon 2003). We agree that the failure to instruct the jury under section 2.05 was error. Therefore, we turn to whether the harm is so egregious that appellant was denied a fair and impartial trial. See Almanza, 686 S.W.2d at 174. The application paragraph of the charge instructed the jury that before it could convict appellant, it had to find beyond a reasonable doubt that (i) Lambert was, at the time of the offense, "a public servant; namely: a City of Dallas Police Officer" and (ii) appellant knew he was a public servant. The undisputed evidence showed that Officer Lambert was in full uniform and in a marked police vehicle when he approached appellant. Lambert's partner was also in full uniform. The State introduced into evidence photographs taken on the day of the offense of Lambert and Craig. The photographs show both officers in police uniform and also depict the marked squad car they were driving. The evidence also shows Lambert told appellant, "Stop. Police." Furthermore, appellant testified that Lambert and Craig were police officers. Thus, the jury had the opportunity to view and assess first hand the distinctiveness of the officer's attire and the marked police vehicle as well as consider undisputed testimony (including appellant's own testimony) that Lambert was clearly identifiable as a police officer that day. Under these circumstances, we cannot conclude appellant was denied a fair and impartial trial by the omission of the section 2.05 instruction. See Rudd v. State, 921 S.W.2d 370, 373 (Tex. App.-Texarkana 1996, pet. ref'd) (concluding omission of section 2.05 instruction was error but did not cause egregious harm because great weight of evidence showed officers were physically close to defendant, in uniform, and arrived in marked police car). We overrule appellant's third point of error in cause number 05-03-00794-CR.

Failure to Instruct on "Attempt"

In his fourth point of error under cause number 05-03-00795-CR, appellant claims the trial judge erred in failing to define the crime of "criminal attempt" in the abstract portion of the charge. Appellant argues the judge should have given the definition set forth in section 15.01 of the penal code and that the failure to do so resulted in egregious harm. Initially, we question whether section 38.14 "is drafted as to encompass . . . section 15.01" as appellant claims. Section 15.01 provides a means to distinguish between attempted offenses and completed offenses. Parfait v. State, 120 S.W.3d 348, 350 (Tex.Crim. App. 2003). Under section 15.01, a defendant "commits an offense if, with specific intent to commit an offense, he does an act amounting to more than mere preparation that tends but fails to effect the commission of the offense intended." Tex. Pen. Code Ann. § 15.01(a) (Vernon 2003). "[A]ttempted offenses receive a different punishment than those for offenses under other sections of the penal code — `one category lower than the offense attempted.'" Parfait, 120 S.W.3d at 351; Tex. Pen. Code Ann. § 15.01(d). In contrast, section 38.14 includes as enumerated offenses both taking and attempting to take a firearm from a peace officer. Tex. Pen. Code Ann. § 38.14(b) (Vernon 2003). This section also defines the "attempt to take" as a lesser included offense and mandates a lesser penalty. See Tex. Pen. Code Ann. § 38.14(e). Because section 38.14 specifically provides for both the offense and the attempted offense, it is not necessary to invoke the criminal attempt language found in section 15.01 to charge a person with attempting to take a peace officer's firearm. It follows that the trial judge was not required to instruct the jury on "criminal attempt" as set forth in section 15.01. Moreover, even assuming the trial judge erred in failing to define the term, appellant has failed to show egregious harm mandating the reversal of this case. When a statutory definition is not included in the charge, we assume the jury would consider the commonly understood meaning of the word or phrase in its deliberations. Nejnaoui v. State, 44 S.W.3d 111, 120 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd). The statutory definition of attempt is neither complex nor unusual, and the definition is not unlike the common meaning of the word. See Nejnaoui, 44 S.W.3d at 120. The "failure to give an abstract instruction is reversible only when such an instruction is necessary to a correct or complete understanding of concepts or terms in the application part of the charge." Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex.Crim.App. 1997). In this case, the trial judge provided the statutory elements of taking or attempting to take a peace officer's firearm and defined firearm, peace officer, and the culpable mental states related to the offenses. The first application paragraph applied the facts of the case to the law of taking a peace officer's firearm. It instructed the jury to find appellant guilty only if they found he intentionally or knowingly took Lambert's firearm. If the jury acquitted appellant of the offense of taking Lambert's firearm, the charge then instructed the jury to consider whether appellant was guilty of attempting to take Lambert's firearm. Because the application paragraphs clearly direct the jury to the facts of the case, the absence of the statutory definition of criminal attempt could not have confused the jury. Thus, even if the omission of the definition was error, the error was not so harmful as to deny appellant a fair and impartial trial. See Pitre v. State, 44 S.W.3d 616, 621 (Tex. App.-Eastland 2001, pet. ref'd) (holding that because application portion of charge tracked indictment and penal code, jury was allowed to apply only appropriate portions of definitions to facts); Nejnaoui, 44 S.W.3d at 120 (holding that because application paragraphs clearly directed jury to facts of case, absence of statutory definition of "conduct" could not have confused jury). We overrule appellant's fourth point of error in cause number 05-03-00795-CR.

Motion to Exclude Evidence

In his final points of error in both cases, appellant complains the trial judge erred in overruling his motion to exclude proof of appellant's prior convictions for enhancement purposes. Appellant claims he did not receive timely notice from the State of its intention to use two prior convictions for enhancement purposes. The record in this case shows that, before voir dire, appellant appeared before the trial judge outside the presence of the jury panel. The judge informed appellant, "You're charged by indictment with a[n] assault, public servant, a third degree felony. Two prior felony convictions are alleged in the indictment. If those are found to be true, the punishment range is a minimum of twenty-five to life. There's no fine on that." (Emphasis ours.) Appellant did not object or move for a continuance; rather, he waived arraignment and pleaded not guilty. During voir dire, defense counsel explained to the potential jurors the issue of punishment and discussed the enhancement allegations with them. During trial, appellant testified in detail about his prior convictions. The jury then found appellant guilty of the charged offenses. At the beginning of the punishment phase, defense counsel objected to the introduction of appellant's enhancement convictions on the ground that neither he nor appellant had been served with a copy of the reindictment. The trial judge overruled appellant's motion. Although appellant assigns this ruling as error, we conclude he waived error, if any. To preserve error for appellate review, the complaining party must make a timely, specific objection. Dixon v. State, 2 S.W.3d 263, 265 (Tex.Crim.App. 1998) (citing Armstrong v. State, 718 S.W.2d 686, 699 (Tex.Crim.App. 1985)). The objection must be made at the earliest possible opportunity. Dixon, 2 S.W.3d at 265 (citing Marini v. State, 593 S.W.2d 709 (Tex.Crim.App. [Panel Op.] 1980)). In this case, appellant was notified before voir dire that the charged offenses were being enhanced with two prior felony convictions. Appellant was required to object or move for a continuance at that point. Because he did not do so, we conclude he has failed to preserve this issue for our review. Furthermore, even assuming it was error, we would nevertheless conclude the error was harmless. Before appellant objected to the State's introduction of his prior convictions, appellant testified, during guilt/innocence, he had been convicted in California of robbery in 1996 and theft in 1997. Because he admitted being convicted of the crimes used to enhance the instant offenses, we cannot conclude the error, if any, affected his substantial rights. See Tex.R.App.P. 44.2(b); see also Hollins v. State, 571 S.W.2d 873, 875 (Tex.Crim.App. 1978) (purpose of enhancement notice is to provide accused with description of judgment of former conviction "that will enable him to find the record and make preparation for a trial of the question whether he is the convict named therein."). We overrule appellant's final point of error in each case. We affirm the trial court's judgments.