Dwayne Matthew Brackens v. State ( 2019 )

In the
Court of Appeals
Second Appellate District of Texas
at Fort Worth
___________________________
No. 02-17-00328-CR
___________________________
DWAYNE MATTHEW BRACKENS, Appellant
V.
THE STATE OF TEXAS
On Appeal from County Criminal Court No. 5
Tarrant County, Texas
Trial Court No. 1465765
Before Sudderth, C.J.; Kerr and Pittman, JJ.
Memorandum Opinion by Justice Pittman
MEMORANDUM OPINION
I. INTRODUCTION
Appellant Dwayne Matthew Brackens appeals his conviction for assault causing
bodily injury to a family member. In two issues, Brackens argues that the evidence is
insufficient to support the jury’s verdict that he acted recklessly and that the trial court
erred by including the lesser-included offense that he acted recklessly in its charge to
the jury. Because we hold that the evidence is sufficient to support the jury verdict
and that the trial court did not err by submitting the State’s requested lesser-included
offense instruction, we affirm.
II. BACKGROUND
By information, the State charged Brackens with intentionally or knowingly
causing bodily injury to Lalandra Hill, a person with whom Brackens had a dating
relationship, by hitting her with his hand.
At trial, Officer John Winter of the Arlington Police Department testified that
he responded to a domestic-disturbance dispatch on July 31, 2016. When Officer
Winter arrived at the location, Brackens’s residence, Winter observed two individuals
standing on the corner, waving at him. Hill, one of the persons standing on the
corner, declared to Winter, “It’s us. It’s us.” Winter described Hill as appearing afraid
and scared. Hill told Winter that she was attempting to “get away.” According to
Officer Winter, Hill also had an “obvious injury to her face.” Specifically, Winter
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“noticed a huge knot on [Hill’s] left cheek below her eye and above her mouth.”
Winter also observed that Hill’s left eye and the top of her lip were swollen.
Officer Winter then spoke with Brackens. By Winter’s account, Brackens told
him that he and Hill had been at a club that night, and while they were driving home,
the two got into an altercation. Brackens told Winter that Hill had assaulted him.
Officer Winter said that he observed scratches and red marks on Bracken’s lower lip,
the right-hand side of his face, and his left ear. Winter further averred that Brackens
told him that Hill’s injuries were due to her falling while attempting to go into his
house. Brackens also told Officer Winter that Hill was extremely intoxicated, was
possibly under the influence of marijuana or cocaine, and was acting dramatically in an
effort to get child support from him.
After speaking with Brackens, Officer Winter spoke again with Hill. Winter
said that what stood out most to him as he spoke with Hill was that she appeared to
be in a great deal of pain. Winter averred that Hill appeared to have recently been in a
“serious altercation” and that she seemed relieved that he had arrived and was glad to
be separated from Brackens. Hill told Officer Winter that she and Brackens were
returning to his house from a club they had visited that night when they began
arguing. Hill further told Winter that once they arrived and as she headed toward the
house, Brackens called her derogatory names and then hit her in the back of the head.
According to Hill, she responded by turning around and hitting Brackens. Allegedly,
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Brackens then retaliated by hitting Hill in the face, and she fell to the ground as a
result.
The State introduced pictures of Hill’s face taken in the back of an ambulance
prior to her being transported from Brackens’s home. According to Officer Winter,
based on his training and experience, Hill’s facial injuries were inconsistent with her
having fallen down and looked instead as if she had been punched in the face. Winter
arrested Brackens, transported him to the police station, and took pictures of
Brackens’s injuries, which Winter described as minor. The State also introduced and
published the pictures of Brackens’s injuries for the jury. Officer Winter averred that
based on his observations, Brackens had assaulted Hill. Winter further said that he
found Hill’s story of what had transpired to be credible but that Brackens’s version of
the events was not.
While at the scene, Officer Winter also spoke with Melton Tippen, Brackens’s
roommate. Winter said that his conversation with Tippen was brief and that he
believed that Tippen had little to offer toward the investigation of what had occurred
that night. Winter said that at no time did Brackens, Hill, or Tippen ever suggest that
Hill’s injuries were because she had fallen against a vehicle.
At trial, Hill testified that she and Brackens had dated off and on for years and
that they had a son together. According to Hill, at the time of the July 31,
2016 events, she was married to someone else, but she and Brackens were “having an
affair.” Hill then stated that she picked up Brackens and Tippen at Brackens’s house
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late the prior evening so that the three could go to a dance club. Hill averred that the
three had stayed at the club until 2:00 a.m. when the club closed and that the three
had drunk heavily while at the club. Hill testified that she was too intoxicated to drive
and that she asked Brackens to drive them home. By Hill’s account, she did not recall
the drive back to Brackens’s home because she suffered memory loss after sustaining
a concussion from Brackens’s hitting her later that morning. Hill said that the first
thing she remembered after arriving at Brackens’s home was him hitting her on the
left side of her face and him leaning over her “saying these most horrible things.” Hill
stated that Brackens spoke to her like she “was trash,” but she did not recall being
struck from behind. Hill further testified that she remembered hitting Brackens after
he had struck her.
Hill said that when Officer Winter arrived, she was initially reluctant to
cooperate with his investigation because she did not want to be placed in the
ambulance and she did not want Brackens to get in trouble “[b]ecause he’s the father
of [their] son.” Hill said that she sustained a black eye and hematoma of the eye
because of Brackens’s having struck her in the face. The State introduced
photographs depicting Hill’s injuries a few weeks after she sustained them. According
to Hill, the pictures were taken by an assistant district attorney a few weeks after the
July 31, 2016 events because she sought a protective order against Brackens. Hill said
that she eventually chose not to pursue the protective order because she and Brackens
shared custody of their son.
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At trial, Tippen testified for the defense. Tippen averred that he, Brackens, and
Hill had gone out the night of July 30, 2016, to celebrate Tippen’s birthday. Tippen
said that once the club began to close, he and Brackens went downstairs and waited
for Hill. As they waited, Brackens received a phone call, which he answered. As
Brackens was talking on the phone, Hill approached him and said something to him,
but Tippen could not make out what she had said. By Tippen’s account, Hill’s
demeanor changed dramatically from “very happy” to not being “very happy at all.”
Eventually, the three got into Hill’s vehicle with Brackens in the driver’s seat, Hill in
the passenger seat, and Tippen in the seat behind Brackens. According to Tippen, as
Brackens drove them to his house, Hill began arguing “about some girl” and started
punching Brackens in the face and pushing on the side of his head as he drove down
the highway; Brackens said nothing while this transpired. Tippen testified that
Brackens had to pull to the side of the road in order to calm down Hill so that she
would stop interfering with his ability to drive safely. Tippen further said that at no
time while Brackens was driving did Brackens strike Hill.
When they eventually arrived at Brackens’s house, Tippen said that Brackens
exited the driver’s side and went immediately toward his house but that Hill fell out of
the vehicle; Tippen believed she had struck the door because he “heard a thump.”
Tippen averred that he went to check on her and that she was on her hands and
knees; he tried to help her up, but “she fell back down again immediately.” Tippen
said that Hill fell again a third time as he tried to walk her toward the house. Tippen
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stated that it was after this third fall that he noticed Hill’s cheek began to swell.
Tippen offered to take Hill in the house and get some ice for her cheek, but Hill
refused. Tippen then went and got ice from the house and brought it out to her, but
she also refused to apply the ice to her face.
By Tippen’s account, Brackens was never near enough to Hill to strike her, and
he did not see Brackens strike her. Tippen said that he eventually tired of trying to
help Hill, and because he had been drinking himself, he decided to go in the house
and sit down. Tippen then fell asleep on the couch but woke up when the police
arrived. Tippen said that it was probably an hour between when he fell asleep and
when the police arrived. Eventually, Tippen spoke with Officer Winter, but he did
not tell Winter about Hill’s having fallen three times. And he did not mention to
Officer Winter that Hill’s face had begun to swell before he went into the house.
As the trial court prepared its charge to the jury regarding guilt-innocence, the
State, over Brackens’s objection, requested that the lesser-included offense of reckless
assault causing bodily injury to a family member be included in the instructions. The
trial court agreed, and the instruction—along with an instruction regarding intentional
or knowing assault causing bodily injury to a family member—was submitted to the
jury. After deliberation, the jury found Brackens guilty of the lesser-included offense
of reckless assault, and the trial court rendered judgment accordingly. After a
punishment hearing, the trial court sentenced Brackens to 120 days in jail. This
appeal followed.
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III. DISCUSSION
A. Sufficiency of the Evidence
In his first issue, Brackens argues that the evidence is insufficient to support
the jury’s verdict that he recklessly committed assault against Hill. Specifically,
Brackens argues that the evidence in this case could have shown only that he
intentionally hit Hill or that he did not hit her at all; thus, he could not have recklessly
committed an assault against Hill. We disagree.
1. Standard of Review and the Law of Assault
Federal due process requires that the State prove beyond a reasonable doubt
every element of the crime charged. Jackson v. Virginia, 443 U.S. 307, 316, 99 S. Ct.
2781, 2787 (1979); see U.S. Const. amend. XIV. In our due-process evidentiary-
sufficiency review, we view all the evidence in the light most favorable to the verdict
to determine whether any rational factfinder could have found the crime’s essential
elements beyond a reasonable doubt. Jackson, 443 U.S. at 319, 99 S. Ct. at 2789;
Queeman v. State, 520 S.W.3d 616, 622 (Tex. Crim. App. 2017).
The trier of fact is the sole judge of the weight and credibility of the evidence.
See Tex. Code Crim. Proc. Ann. art. 38.04; Blea v. State, 483 S.W.3d 29, 33 (Tex. Crim.
App. 2016). Thus, when performing an evidentiary sufficiency review, we may not re-
evaluate the weight and credibility of the evidence and substitute our judgment for
that of the factfinder. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex. Crim. App.
2012). Instead, we determine whether the necessary inferences are reasonable based
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upon the cumulative force of the evidence when viewed in the light most favorable to
the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App. 2015). We must
presume that the factfinder resolved any conflicting inferences in favor of the verdict
and defer to that resolution. Id. at 448–49; see Blea, 483 S.W.3d at 33. A jury may
accept or reject all or any part of a witness’s testimony. Franklin v. State, 193 S.W.3d
616, 620 (Tex. App.—Fort Worth 2006, no pet.).
A person commits assault if the person intentionally, knowingly, or recklessly
causes bodily injury to another. Tex. Penal Code Ann. § 22.01(a)(1). “Bodily injury”
means “physical pain, illness, or any impairment of physical condition.” Id.
§ 1.07(a)(8). Bodily-injury assault is a result-of-conduct offense. See Landrian v. State,
268 S.W.3d 532, 536 (Tex. Crim. App. 2008). Thus, in an assault case, the defendant’s
mental state relates to the result of the defendant’s conduct—bodily injury. See Tex.
Penal Code Ann. § 22.01(a)(1); Schroeder v. State, 123 S.W.3d 398, 400 (Tex. Crim. App.
2003). A person is reckless with respect to the result of conduct when he consciously
disregards a substantial and unjustifiable risk that “the result will occur. The risk must
be of such a nature and degree that its disregard constitutes a gross deviation from the
standard of care that an ordinary person would exercise under all the circumstances as
viewed from the actor’s standpoint.” Tex. Penal Code Ann. § 6.03(c). A factfinder
may infer a defendant’s mental state through the defendant’s acts, words, and
conduct. Reyes v. State, 480 S.W.3d 70, 77 (Tex. App.—Fort Worth 2015, pet. ref’d).
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2. The Evidence is Sufficient to Support “Reckless” Assault.
Brackens candidly admits that the evidence could have shown that he
intentionally hit Hill “in her head and face . . . causing the substantial injury described
by” Winter. But Brackens argues that if the evidence “only showed that he either
viciously hit Hill, or did not hit her at all, then there is no evidence to support a
finding of recklessness.” Viewing the evidence in the light most favorable to the
verdict, however, the evidence showed that, as charged in the information, Brackens
hit Hill with his hand.
From this evidence, we conclude that the jury could have rationally found that
Brackens was aware of a substantial and unjustifiable risk of bodily injury to Hill when
he hit her with his hand, that he consciously disregarded the risk, that he grossly
deviated from the standard of care that an ordinary person would exercise, and that he
caused bodily injury. See Tex. Penal Code Ann. §§ 6.03(c); 22.01(a)(1); see also Wingfield
v. State, 282 S.W.3d 102, 105 (Tex. App.—Fort Worth 2009, pet. ref’d) (recognizing
that “people of common intelligence understand pain and some of the natural causes
of it”). Although the State sought to prove an intentional or knowing assault based
on these facts, the law did not prevent the jury from considering the same evidence to
convict Brackens for assault committed through a reckless state of mind. See
Stepherson v. State, 523 S.W.3d 759, 764 (Tex. App.—Houston [14th Dist.] 2017, no
pet.) (“Appellant . . . insists that the State sought only to prove that appellant acted
intentionally and knowingly . . . and not recklessly . . . . Even if true, a jury is not
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prevented from looking at the same evidence and concluding that it supports a
finding of reckless, and not intentional, conduct.”); see also Tex. Penal Code Ann.
§ 6.02(e) (“Proof of a higher degree of culpability than that charged constitutes proof
of the culpability charged.”); Flores v. State, 245 S.W.3d 432, 440 (Tex. Crim. App.
2008) (stating that “proof of intent would, as a matter of law, establish recklessness as
well”); Bell v. State, 693 S.W.2d 434, 438 (Tex. Crim. App. 1985) (stating that when the
State establishes the “higher culpable mental state of intent or knowledge, it
necessarily establishe[s] the lower culpable mental state of recklessness”); Cobb v. State,
No. 10-16-00406-CR, 2017 WL 2819106, at *3 (Tex. App.—Waco June 28, 2017, pet.
ref’d) (mem. op., not designated for publication) (holding that a factfinder could
rationally find that a defendant recklessly caused the victim’s death when the
defendant shot the victim eight times at close range).
This Court has recently addressed the very issue of whether conduct that could
be deemed intentional can also support a jury’s verdict that the conduct constituted
recklessness even though the State did not charge the defendant with a reckless intent.
See Byers v. State, No. 02-17-00282-CR, 2018 WL 3580886, at *3 (Tex. App.—Fort
Worth July 26, 2018, no pet.) (mem. op, not designated for publication). In Byers, the
State charged Byers with intentionally and knowingly grabbing his girlfriend’s throat
and squeezing to the point of causing red marks or repeatedly slamming her head on
the floor. Id. Even though the State had charged an intentional and knowing act, the
jury found that Byers had acted recklessly when he squeezed his girlfriend’s neck or
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repeatedly slammed her head on the floor. Id. On appeal, Byers argued that his
conduct could only have been intentional or that it did not occur at all. Id. This
Court reasoned that the jury could have rationally found that Byers was aware of a
substantial and unjustifiable risk of bodily injury to his girlfriend, that he consciously
disregarded the risk when he either grabbed and squeezed her throat or repeatedly
struck her head on the floor, that he grossly deviated from the standard of care that
an ordinary person would exercise, and that he caused bodily injury. Id. This Court
held that the evidence was sufficient to support the jury’s verdict that Byers had
recklessly committed assault. Id.
As in Byers, where the State charged Byers with the intentional or knowing act
of grabbing his girlfriend’s throat or slamming her head repeatedly on the ground,
here, the State charged Brackens with intentionally hitting Hill with his hand. And
like in Byers, where this Court held that conduct that could have supported an
intentional or knowing act but that the jury was free to find that he had acted
recklessly, here, even though the State charged Brackens with intentionally or
knowingly hitting Hill with his hand, the jury was free to find that this same conduct
constituted a reckless act. See id. Thus, as we did in Byers, this Court concludes that
the evidence in this case supports that jury’s verdict that Brackens recklessly hit Hill
with his hand, causing bodily injury. See id. (“Although the State sought to prove an
intentional or knowing assault based on these facts, the law did not prevent the jury
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from considering the same evidence to convict Byers for assault committed through a
reckless state of mind.”). We overrule Brackens’s first issue.
B. The Trial Court Did Not Err by Including the Lesser-Included
Instruction in the Jury Charge.
In his second issue, Brackens argues that the trial court reversibly erred by
including an instruction in the jury charge on the lesser-included offense of reckless
assault causing bodily injury. Relying on the same argument that he made in his first
issue—that the evidence established only an intentional act or no act at all—Brackens
contends that there was no evidence to support the inclusion of the lesser-included
offense instruction. We disagree.
We must review “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
reviewing a jury charge, we first determine whether error occurred; if not, our analysis
ends. Id.
Brackens’s issue focuses on the second prong of the Royster-Rousseau test,
Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App. 1993); Royster v. State,
622 S.W.2d 442, 446 (Tex. Crim. App. 1981) (op. on reh’g), but because the State
requested the lesser-included offense instruction, it needed only to satisfy the first
prong of that test to obtain the instruction. Grey v. State, 298 S.W.3d 644, 651 (Tex.
Crim. App. 2009) (holding that the State does not have to satisfy the “guilty only”
prong of the Royster-Rousseau test to be entitled to a lesser-included offense
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instruction); Satchell v. State, 321 S.W.3d 127, 136 (Tex. App.—Houston [1st Dist.]
2010, pet. ref’d). The State had no obligation to show that the record contains some
evidence that would permit the jury to convict Brackens only of the lesser offense.
See Grey, 298 S.W.3d at 645; Satchell, 321 S.W.3d at 136.
Thus, our only question is whether the elements of reckless assault bodily
injury are included within the proof necessary to establish intentional or knowing
bodily assault. See State v. Meru, 414 S.W.3d 159, 161 (Tex. Crim. App. 2013); Hall v.
State, 225 S.W.3d 524, 528, 535–36 (Tex. Crim. App. 2007). The requested lesser
offense must meet the requirements of at least one of the four types of lesser offenses
described in article 37.09 of the code of criminal procedure. Tex. Code Crim. Proc.
Ann. art. 37.09; Moore v. State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998). An offense is
a lesser-included offense under article 37.09(3) of the code of criminal procedure if “it
differs from the offense charged only in the respect that a less culpable mental state
suffices to establish its commission.” Tex. Code Crim. Proc. Ann. art. 37.09(3).
In a juvenile case, we have already held that reckless assault causing bodily
injury is a lesser-included offense of intentional or knowing assault causing bodily
injury because it differs from intentional or knowing assault causing bodily injury only
in the less culpable mental state. In re R.H., No. 02–05–00340–CV,
2006 WL 1653171, at *1 (Tex. App.—Fort Worth June 15, 2006, no pet.) (mem. op.);
see Hicks v, State, 372 S.W.3d 649, 658 (Tex. Crim. App. 2012) (holding separate
instruction of aggravated assault by recklessly causing bodily injury was proper when
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defendant was charged with aggravated assault by intentionally or knowingly using a
deadly weapon). We see no reason to deviate from our holding here. Accordingly,
we hold that the trial court properly included the challenged instruction in the jury
charge.
We overrule Brackens’s second issue.
IV. CONCLUSION
Having overruled both of Brackens’s issues on appeal, we affirm the trial
court’s judgment.
/s/ Mark T. Pittman
Mark T. Pittman
Justice
Do Not Publish
Tex. R. App. P. 47.2(b)
Delivered: March 14, 2019
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