Richard Lee Simmons A/K/A Richard Smith v. State ( 2015 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00126-CR
RICHARD LEE SIMMONS A/K/A APPELLANT
RICHARD SMITH
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
TRIAL COURT NO. CR12714
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MEMORANDUM OPINION 1
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Appellant Richard Lee Simmons a/k/a Richard Smith appeals his felony
conviction for assault against a member of his family or household. 2 In one
issue, he contends that the trial court erred by overruling his objection to a jury
1
See Tex. R. App. P. 47.4.
2
See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(A) (West Supp. 2014).
instruction. Specifically, he argues that the jury instruction was contrary to the
language of the indictment and allowed the jury to reach a non-unanimous
verdict concerning the manner in which he committed the assault. We affirm.
Background Facts
Appellant met M.B. (Monica) 3 in 2011. They began a romantic
relationship, and he lived with her. One morning in October 2013, Monica and
appellant awoke early because appellant had a civil court hearing to attend.
When appellant could not find his cigarettes or his lighter, he became angry. He
began throwing things and commanded Monica to make him breakfast “so that
he could go see the judge at the courthouse.”
Monica refused and went outside. Appellant eventually grabbed her by her
hair, pulled her to his truck, and told her that she must attend his court hearing
with him. In the process, he also hit her with his fists (including on her wrist
because “he knew it hurt” and on her face), kicked her, bit her, and spit on her.
Monica went to the courthouse with appellant.
After appellant won his court case, he and Monica began to walk out of the
courthouse while he verbally abused her. Monica said, “I don’t have to put up
with this anymore. I’m going back inside.” Appellant responded by stating, “If
you do, you’ll go out in a body bag.” She went back inside to meet with Julie
Pritchett, a victim assistance coordinator at the county attorney’s office.
3
To protect the victim’s identity, we use an alias. See McClendon v. State,
643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).
2
At that meeting, Monica was distraught and desperate; to Pritchett, Monica
appeared to be “an emotional wreck.” Monica, who was injured on her wrist, said
that she had been assaulted and that she feared for her life. Monica told
Pritchett that through the course of events that morning, appellant had slapped
and punched her head, spit on her, and punched her wrist. Robert Moon, who
was then a sheriff’s deputy in Hood County, took a statement from Monica. Like
Pritchett, he noticed Monica’s injured wrist. After Monica finished speaking with
Deputy Moon, she stayed for several days in a women’s shelter.
A grand jury indicted appellant with assault by causing bodily injury to
Monica. The indictment alleged that appellant had a familial or dating
relationship with Monica and that he had struck her on her head, wrist, and leg
and had pulled her hair. The indictment also alleged that appellant had been
previously convicted of assault against a member of his family or household.
Before trial, appellant filed several documents, including an election for the jury to
assess his punishment if he was convicted.
At trial, appellant pled not guilty. The jury considered the parties’
presentation of evidence and arguments and found him guilty. 4 After receiving
appellant’s plea of true to a prior final felony conviction and hearing more
4
The trial court admitted a document establishing that in 2006, a court
convicted appellant of assault against a member of his family or household.
3
evidence and arguments concerning his punishment, 5 the jury assessed the
punishment at twenty years’ confinement. 6 The trial court sentenced him
accordingly. Appellant brought this appeal.
Jury Instruction
In his only issue, appellant contends that the trial court erred when it
granted the State’s request for a disjunctive jury instruction that was contrary to
the language of the indictment and that allowed the jury to reach a non-
unanimous verdict. Appellant’s indictment alleged that in October 2013 in Hood
County, appellant “did then and there intentionally, knowingly, or recklessly
cause bodily injury to [Monica] . . . by striking [her] on her head, wrist and leg with
said defendant’s hands and pulled [Monica’s] hair.” [Emphases added.] But the
jury charge on the issue of appellant’s guilt instructed the jury to find him guilty if
the jury determined “beyond a reasonable doubt that . . . [he] intentionally,
knowingly or recklessly cause[d] bodily injury to [Monica] . . . by striking [her] on
her head, wrist or leg with [his] hands or pulled [her] hair.” [Emphases added.]
5
Monica testified again in the punishment phase of the trial, along with two
other witnesses.
6
When a defendant has been previously convicted of assault against a
member of the defendant’s family or household, a second conviction for that
offense is a third-degree felony. See Tex. Penal Code Ann. § 22.01(b)(2)(A).
Appellant, however, faced a second-degree-felony range of punishment—two to
twenty years’ confinement—because of his previous felony conviction. See id.
§ 12.33(a) (West 2011), § 12.42(a) (West Supp. 2014).
4
The trial court included the disjunctive “or” language in this jury instruction
as a result of the following exchange that occurred after the State rested its case
as to appellant’s guilt:
[THE STATE]: Judge, I . . . just noticed one thing. It’s in the
application paragraph, and that would be on page 2, and I guess my
. . . thought or question is this. We . . . have to prove that . . . he
caused bodily injury to [Monica] . . . by striking her if -- but I don’t
think we have to prove all of those[.] I think there should be an “or”
between those acts that were specific in the indictment . . . .
....
[DEFENSE COUNSEL]: . . . I would recommend that [all of
the acts, stated conjunctively, are] exactly what’s in the indictment,
it’s what [the State has] alleged for the last 15 months . . . . That’s
the . . . testimony they attempted to elicit not only from [Monica] but
through Ms. Pritchett, the first person she contacted after these
alleged incidents, and it should follow and track the indictment.
The trial court granted the State’s request to phrase the charged acts with the
disjunctive “or” language emphasized above.
We consider all alleged jury-charge error regardless of preservation in the
trial court. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In our
review of a jury charge, we first determine whether error occurred; if error did not
occur, our analysis ends. Id.
The charge’s apparent inconsistency with the indictment
Appellant first argues that the jury charge was erroneous because the
indictment charged the assaultive acts conjunctively while the jury charge stated
them disjunctively. We cannot agree. As the court of criminal appeals has
explained,
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[A]lternate pleading of the differing methods of committing one
offense may be charged in one indictment. And although the
indictment may allege the differing methods of committing the
offense in the conjunctive, it is proper for the jury to be charged in
the disjunctive. It is appropriate where the alternate theories of
committing the same offense are submitted to the jury in the
disjunctive for the jury to return a general verdict if the evidence is
sufficient to support a finding under any of the theories submitted.
Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (citations
omitted), cert. denied, 504 U.S. 958 (1992); see Zanghetti v. State, 618 S.W.2d
383, 386–88 (Tex. Crim. App. [Panel Op.] 1981) (holding that there was no error
when the indictment charged the methods of committing murder conjunctively but
the jury charge allowed the jury to convict the defendant if it found any of the
methods beyond a reasonable doubt); Hernandez v. State, Nos. 02-13-00196-
CR, 02-13-00197-CR, 2015 WL 4664840, at *3 (Tex. App.—Fort Worth Aug. 6,
2015, pet. filed) (explaining that although the State alleged in an indictment that
the defendant pointed a firearm at the victim and threatened to shoot the victim,
the jury charge “properly asked” the jury whether the defendant pointed the
firearm or threatened to shoot); Teamer v. State, 429 S.W.3d 164, 169 (Tex.
App.—Houston [14th Dist.] 2014, no pet.) (“The hypothetically correct charge
need not mirror all conjunctive language from the charging instrument.”); Wert v.
State, 383 S.W.3d 747, 755 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“It is
proper for the jury to be charged in the disjunctive even though the indictment . . .
may allege the differing methods of committing the offense in the conjunctive.”);
Rangel v. State, 199 S.W.3d 523, 540 (Tex. App.—Fort Worth 2006) (“If an
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indictment alleges different methods of committing the same offense in the
conjunctive (‘and’), it is not improper to submit the different methods to the jury in
the disjunctive (‘or’).”), pet. dism’d, 250 S.W.3d 96 (Tex. Crim. App. 2008).
Based on the authority cited above, we cannot conclude, as appellant
contends, that the jury charge was erroneous because it was contrary to
language in the indictment. We overrule that part of appellant’s issue.
Jury unanimity
Next, appellant contends that the jury charge allowed the jury to reach a
non-unanimous verdict. Texas law requires a unanimous verdict in all felony
cases. Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2014); Leza v.
State, 351 S.W.3d 344, 356 (Tex. Crim. App. 2011); Lozano v. State, 359 S.W.3d
790, 821 (Tex. App.—Fort Worth 2012, pet. ref’d). To discern what a jury must
be unanimous about, we apply basic grammar rules to the statute defining the
offense to determine whether the legislature created multiple, separate offenses,
or a single offense with different methods or means of commission. Pizzo v.
State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007); Davila v. State, 346 S.W.3d
587, 590 (Tex. App.—El Paso 2009, no pet.). “The unanimity requirement is not
violated when the jury has the option of choosing between alternative modes of
commission.” Pizzo, 235 S.W.3d at 715; see Young v. State, 341 S.W.3d 417,
422 (Tex. Crim. App. 2011); Lozano, 359 S.W.3d at 821. But when the State
charges different criminal acts, rather than alternative modes of committing the
same criminal act, “the jury must be instructed that it cannot return a guilty verdict
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unless it unanimously agrees upon the commission of any one of these criminal
acts.” Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).
Appellant contends that the charge allowed for a non-unanimous verdict
because some jurors “could have believed that [appellant] struck [Monica’s]
head, while others could have believed that he struck her wrist. It’s not
necessarily true that they were unanimous on the same allegation.”
Our sister intermediate appellate court considered the same argument in
Davila. 346 S.W.3d at 590–91. There, as here, the State charged the defendant
with committing assault against a member of his family or household. Id. at 589.
The jury charge instructed the jury to find the defendant guilty if it found that he
“intentionally, knowingly, or recklessly cause[d] bodily injury to [the victim] . . . by
pulling [her] hair with [his] hand, or by grabbing [the victim] about the neck with
[his] hand.” Id. at 591 (emphasis added). The court of appeals held that this
charge did not violate the requirement of jury unanimity, explaining,
The essential elements required under this statute are (1) the
defendant, (2) intentionally, knowingly[,] or recklessly, (3) causes
bodily harm to a family member, including the defendant’s
spouse. . . .
....
. . . Appellant argues [that] part of the jury could have
convicted him for pulling [the victim’s] hair, while other jurors could
have convicted him for wrapping his hand around her neck. We
disagree. Neither of the acts of pulling [the victim’s] hair nor
grabbing her neck . . . constitute essential elements of the charged
offense in accordance with the grammatical analysis described
above. Rather the jury was merely given the opportunity to consider
alternative means, or methods by which Appellant committed the
8
core of the offense[:] causing bodily harm to his wife. Therefore, the
unanimity requirement was not violated by the charge . . . .
Id. (citation omitted); see also Agbor v. State, No. 02-12-00401-CR, 2013 WL
1830679, at *3 (Tex. App.—Fort Worth May 2, 2013, no pet.) (mem. op., not
designated for publication) (holding that jurors were not required to unanimously
agree on whether the defendant struck the victim with his hand, pulled her hair,
or pushed her because all of these facts were “manners and means by which
[the defendant] committed assault”); Marinos v. State, 186 S.W.3d 167, 175 (Tex.
App.—Austin 2006, pet. ref’d) (concluding, with respect to an aggravated assault
conviction, that it was “not necessary . . . for the court to require the jurors to
agree that appellant used a bag, or a piece of a bag, or his hand to inflict the
bodily injury”). 7
We agree with the rationale and conclusion expressed in Davila and the
other cases cited above. Therefore, we hold that the jury charge in this case did
not allow for a non-unanimous verdict and that it was not erroneous. We
overrule the remainder of appellant’s only issue.
7
The court of criminal appeals cited Marinos approvingly while stating that
the legislature has “evinced no intent that jurors need be unanimous about . . .
[the] manner in which the defendant caused the injury.” Landrian v. State, 268
S.W.3d 532, 538–39 & n.31 (Tex. Crim. App. 2008).
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Conclusion
Having overruled appellant’s sole issue, we affirm the trial court’s
judgment.
/s/ Terrie Livingston
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; WALKER and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: December 3, 2015
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