Opinion
No. 05-16-00034-CR
10-09-2017
ANTUAN SPENCER, Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the Criminal District Court No. 7 Dallas County, Texas
Trial Court Cause No. F-1453001-Y
MEMORANDUM OPINION
Before Justices Bridges, Fillmore, and Stoddart
Opinion by Justice Stoddart
A jury convicted Antuan Spencer of aggravated assault and sentenced him to life imprisonment. In a single issue, Spencer argues the jury charge was fundamentally defective because it authorized the jury to convict him under a manner and means not alleged in the indictment. The State concedes error, but argues the error did not cause egregious harm. We modify the judgment to show a deadly weapon finding was made and Spencer pleaded true to the first enhancement paragraph and the jury found it to be true. As modified, we affirm the trial court's judgment.
FACTUAL BACKGROUND
Spencer and the complainant, Alta Pierce, had an on-and-off dating relationship. On the day of the assault, Spencer broke the bathroom window of Pierce's apartment to gain access. When Pierce arrived home, Spencer was hiding inside waiting for her. Spencer beat her with his fists and kicked her while wearing steel-toe boots. He threw her against a wall and choked her with his arm until she passed out. Pierce recalled Spencer had a knife in his hand, but did not remember anything else about the knife. When Pierce awoke, she was in bed and Spencer was next to her. Spencer threatened to kill her. The police arrived soon after.
A neighbor heard a woman, later identified as Pierce, screaming extremely loudly. He went to a window of his apartment and saw Spencer grabbing Pierce's hair, shirt, and legs while pulling her into an apartment. The neighbor testified: "He was beating her up. He was being as dominant as a male could be over a female. . . . At some point he actually physically picked her up . . . and lost control of her because she was squirming, and she slammed back down on the ground on her back once again." The neighbor concluded Spencer would either seriously injure or kill Pierce. He called the police twice.
When Spencer surrendered to the police he had blood on his shirt, boots, and hands, and was extremely agitated and angry. Spencer yelled statements at the officers such as: "I'm going to kill her mother and sister," "I kicked that bitch in the head with my steel-toed boots. I beat her ass," and "she needs to be dead." Photographs admitted at trial showed Spencer with blood on his hands, shirt sleeve, and both boots. The manner in which the blood was smeared on Spencer's boots is consistent with someone kicking another person.
Pierce was visibly injured. Dr. Jim Gilmore testified that Pierce suffered a fracture of the sinus, cheekbone, and floor of the orbit. Gilmore performed surgery and put a titanium plate in the eye area. After the surgery, a CT scan showed Pierce still could not move her eye normally and a second surgery was required. Pierce will suffer ptosis, or droopy eyelids, caused by damage to cranial nerves. She likely will not regain the full range of motion in her right eye. Gilmore testified "[i]t would take a lot of force" to cause the factures, which are consistent with somebody being kicked in the face with a boot or repeatedly punched.
Pierce testified her vision is diminished as a result of the assault, her range of movement in her eye is limited, and she has double vision. She testified she will always experience vision limitations as a result of the assault, and she may lose her eyesight. At the time of trial, approximately eighteen months after the assault, she still experienced pain. The jury saw photos of Pierce's face and body after the incident.
LAW & ANALYSIS
The State indicted Spencer for aggravated assault using a deadly weapon, specifically a boot and a foot, against a person with whom he was in a dating relationship. Although the State filed a motion to amend the indictment to add a knife to the list of deadly weapons and the trial court granted the motion, the State did not file an amended indictment.
The jury charge stated:
. . . if you believe from the evidence beyond a reasonable doubt that the defendant, Antuan Spencer, on or about the 7th day of March A.D. 2014, in Dallas county, Texas did unlawfully then and there intentionally, knowingly or recklessly cause serious bodily injury to another. . . hereinafter called complainant, by striking complainant with a hand or by kicking complainant with a boot or a foot and said defendant did use a deadly weapon, to wit: a boot or a foot or a knife, during the commission of the assault, . . .(emphasis added). Appellant did not object to the jury charge, but argues he suffered egregious harm from the improper instruction.
When a defendant fails to timely object to the jury instructions, reversal is only required if the error was fundamental in that it was so egregious and created such harm that the defendant was deprived of a fair and impartial trial. State v. Ambrose, 487 S.W.3d 587, 594 (Tex. Crim. App. 2016). Egregious harm is a "high and difficult standard" to meet, and such a determination must be "borne out by the trial record." Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). Errors meeting this standard affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Id.
We will not reverse a conviction unless the defendant has suffered "actual rather than theoretical harm." Id. When examining the record to determine whether charge error caused egregious harm to a defendant, we consider (1) the entirety of the jury charge, (2) the state of the evidence, including the contested issues and weight of probative evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the trial record as a whole. Id.
The court of criminal appeals considered whether a jury charge error caused harm in Sanchez v. State, 376 S.W.3d 767 (Tex. Crim. App. 2012). In Sanchez, the jury instructions were erroneous in their inclusion of multiple manner-and-means theories for the cause of the complainant's death. Sanchez, 376 S.W.3d at 774. Even though the defendant timely objected to the error at trial, the court concluded he was not harmed. Id. at 775. Considering the entire record, the Sanchez court stated: "When a jury returns a general guilty verdict on an indictment charging alternate methods of committing the same offense, the verdict stands if the evidence is sufficient to support a finding under any of the theories submitted. The "presence of overwhelming evidence of guilt plays a determinative role in resolving the issue and may be considered when assessing jury-charge error." Id. (internal citations and quotation marks omitted).
The evidence shows Spencer injured Pierce by hitting her and kicking her with his steel-toe boots, which also is what Spencer yelled at the police when he was arrested ("I kicked that bitch in the head with my steel-toed boots. I beat her ass."). Spencer had blood on his hands, shirt, and both boots. Police testified the blood splatter on Spencer's boots was consistent with kicking Pierce, and Dr. Gilmore testified that "[i]t would take a lot of force" to cause Pierce's factures and they were consistent with somebody being kicked in the face with a boot or repeatedly punched. There did not appear to be contested issues at trial and the record does not reveal any alternate theory by the defense. There is no evidence contesting Spencer hit Pierce and kicked her with his steel-toe boots and caused her injuries.
The State did not argue Spencer committed the assault with a knife. During closing argument, the prosecutor stated it must prove Spencer caused the injuries by "striking her with a hand and kicking her with a foot" and then told the jury the State met its burden by showing Spencer hit Pierce with his fists and kicked her with his steel-toe boots. In closing, the State did not discuss the knife.
Having reviewed the entirety of the record, including the evidence, jury charge, and closing arguments, we cannot conclude Spencer suffered actual, not just theoretical, harm from the inclusion of the knife as a possible deadly weapon in the jury charge. See Sanchez, 376 S.W.3d at 775 (presence of overwhelming evidence of guilt may be considered when assessing harm from jury charge error); Adams v. State, No. 04-16-00443-CR, 2017 WL 2561558, at *2 (Tex. App.—San Antonio June 14, 2017, no pet.) (mem. op., not designated for publication) (where indictment charged burglary of habitation by entering habitation and committing theft but jury charge allowed jury to convict if it found either attempted theft or actual theft and jury actually entered a finding that appellant committed burglary of habitation with intent to commit theft, charge error not egregiously harmful). It is likely the jury's verdict was based on Spencer's actions of assaulting Pierce by hitting or kicking her and not by using a knife against her. Accordingly, we conclude the record does not demonstrate Spencer suffered egregious harm from the incorrect jury charge. We overrule Spencer's sole issue.
MODIFICATION OF JUDGMENT
The trial court's judgment incorrectly shows "N/A" in the section regarding deadly weapon finding. Because the necessary information is available in the record, on our own motion we modify the trial court's judgment to show the "findings on deadly weapon" is "yes, a boot or foot." See TEX. R. APP. P. 43.2(b); Asberry v. State, 813 S.W.2d 526, 529-30 (Tex. App.—Dallas 1991, pet. ref'd).
The trial court's judgment also incorrectly shows "N/A" in the sections regarding "plea to 1st enhancement paragraph" and "findings on 1st enhancement paragraph." Because the necessary information is available in the record, on our own motion we modify the trial court's judgment to show Spencer entered a plea of "not true" to the first enhancement paragraph and the jury found the first enhancement paragraph to be "true."
CONCLUSION
We modify the trial court's judgment and affirm as modified.
/Craig Stoddart/
CRAIG STODDART
JUSTICE Do Not Publish
TEX. R. APP. P. 47.2(b) 160034F.U05
JUDGMENT
On Appeal from the Criminal District Court No. 7, Dallas County, Texas
Trial Court Cause No. F-1453001-Y.
Opinion delivered by Justice Stoddart. Justices Bridges and Fillmore participating.
Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to show appellant Antuan Spencer pleaded "not true" to the first enhancement paragraph and the jury found the first enhancement paragraph to be "true." The judgment is further MODIFIED to show the "finding on deadly weapon" is "yes, a boot or foot." As REFORMED, the judgment is AFFIRMED. Judgment entered this 9th day of October, 2017.