Lynnesha Collins v. State ( 2005 )

In The

Court of Appeals

Ninth District of Texas at Beaumont

____________________

NO. 09-04-407 CR ____________________

LYNNESHA COLLINS, Appellant

V.

THE STATE OF TEXAS, Appellee

---

On Appeal from the 359th District Court Montgomery County, Texas Trial Cause No. 04-02-01440-CR

---

MEMORANDUM OPINION

A jury found Lynnesha Collins guilty of committing aggravated assault with a deadly weapon. Collins asks this Court to find that the trial court erred in not allowing the jury to consider whether she was guilty of less serious offenses such as deadly conduct or assault. We affirm.

After finding Collins guilty of aggravated assault with a deadly weapon, the jury assessed her punishment at ten years imprisonment along with a $5000 fine. See Tex. Pen. Code Ann. § 22.02(a)(2) (Vernon Supp. 2005). The jury also recommended that Collins's sentence and fine be suspended and that she be placed on community supervision for ten years. The trial court sentenced Collins in accordance with the jury's recommendation. On appeal, Collins brings four issues challenging the jury charge.

Background

Certain facts are undisputed. Taking her young daughter with her, Collins drove to Willis to visit her boyfriend, Jessie Hollins. Shortly after Collins arrived at his residence, she and Hollins argued. Collins left in her car. She drove several blocks down the street where Hollins lived before running a stop sign at the Campbell Road intersection. Collins was driving approximately thirty to thirty-five miles an hour when her vehicle collided with the vehicle driven by T.L. T.L. suffered significant injuries. ⁽¹⁾

Hollins testified at trial and was one of the State's primary witnesses. However, Collins disputed much of his testimony. Hollins testified that Collins became upset after their argument and drove off in her car. The car's tires squealed as she left. Collins returned in approximately ten minutes, came inside, and then decided to leave again. Hollins said he walked outside with her and told her she needed to drive more carefully. According to Hollins, Collins responded with an obscenity, told him that she would drive as fast as she wanted to drive, and instructed him not to tell her what to do. Hollins said he saw Collins run three stop signs and at the third, he saw her brake lights come on as the wreck occurred. He estimated she was traveling at fifty-five to sixty miles per hour before the brake lights came on. Hollins further stated that Collins did not go through the third stop sign completely as "she was trying to brake and stop the car."

Collins testified at trial. She stated that after her argument with Hollins, she strapped her daughter in the car seat and drove off. According to Collins, Hollins did not come out of the house while she was driving off. She stopped at the first stop sign and remained stopped for at least thirty seconds and thought about Hollins. At the second stop sign, she remained stopped for at least one minute and cried. Collins testified that as she drove toward the next intersection (Campbell Road), she was in her "own world." She stated that when she noticed the stop sign, she "looked up and . . . the accident had happened." She further said: " So I did see it, but it was too late when I saw it." Collins testified that she was looking straight ahead and was aware that there was a stop sign at the intersection beyond Campbell Road and was concentrating on that stop sign further down the road. By the time she realized there was a stop sign at the Campbell Road intersection, "the accident was happening." According to Collins, she was driving a normal speed, thirty to thirty-five miles per hour at the time of the accident. Collins's testimony on her speed was supported by an accident-reconstruction expert.

Thus, Collins's testimony differs from Hollins's in several respects. Collins maintained that she left Hollins's residence only once and that they did not discuss her driving; Hollins said she left once, came back, argued with him about her driving, and then left a second time. Collins testified that Hollins was not outside to observe how she drove her car; Hollins said Collins left him standing in the front yard while she drove away at fifty to sixty miles an hour. Collins stated that she ran only one stop sign; Hollins testified that she ran three stop signs.

The indictment charged Collins with aggravated assault with a deadly weapon and alleged that she "intentionally, knowingly, and recklessly cause[d] bodily injury to T.L., by driving and operating a motor vehicle and failing to control speed of said vehicle, failing to stop at a stop sign, failing to yield the right of way to oncoming traffic and causing the vehicle [Collins] was operating to collide with another motor vehicle driven by T.L." The indictment further alleged that Collins "used and exhibited a deadly weapon, to-wit: a motor vehicle, which in the manner of its use or intended use is capable of causing death or serious bodily injury."

The jury charge allowed conviction of the alleged offense if the jury found beyond a reasonable doubt that Collins either "intentionally, knowingly, or recklessly cause[d] bodily injury to T.L., by driving and operating a motor vehicle and failing to control speed of said vehicle, failing to stop at a stop sign, failing to yield the right of way to oncoming traffic and causing the vehicle [Collins] was operating to collide with another motor vehicle driven by T.L." The jury charge further defined "recklessly" as follows:

A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but 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.

The jury charge did not require the jury to separately determine that the motor vehicle was a deadly weapon.

In her first two issues, Collins asserts that the trial court erred in refusing her request for jury charge instructions on the lesser-included offenses of deadly conduct (issue one) and assault causing bodily injury (issue two). When determining whether a defendant is entitled to a lesser included offense instruction, courts apply the two-prong Aguilar/Rousseau test. Hall v. State, 158 S.W.3d 470, 473 (Tex. Crim. App. 2005)(referring to Aguilar v. State, 682 S.W.2d 556, 558 (Tex. Crim. App. 1985) and Rousseau v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993)). This test requires: (1) that the lesser offense must actually be a lesser-included offense of the charged offense as defined by article 37.09 ⁽²⁾ and (2) that the record must contain some evidence permitting a rational jury to find that the defendant is guilty only of the lesser-included offense. Hall, 158 S.W.3d at 473. "In other words, there must be some evidence from which a rational jury could acquit the defendant of the greater offense while convicting him of the lesser-included offense. The evidence must establish the lesser-included offense as a valid rational alternative to the charged offense." Feldman v. State, 71 S.W.3d 738, 750-51 (Tex. Crim. App. 2002)(citations omitted). However, in determining whether the trial court should have given the lesser-included offense charge, we do not require the supporting evidence to be credible, uncontroverted, or consistent with other evidence. Hall, 158 S.W.3d at 473.   

In issue one, Collins argues the trial court erred in denying her request for a charge on deadly conduct. As the State concedes that deadly conduct is a lesser-included offense of aggravated assault with a deadly weapon, we need review only the second part of the Aguilar/Rousseau test to determine whether the record contains some evidence that would permit a rational jury to acquit Collins of aggravated assault with a deadly weapon while convicting her of deadly conduct. See id.

The Texas Penal Code defines "aggravated assault with a deadly weapon." One way that offense occurs is when a person "intentionally, knowingly, or recklessly" causes bodily injury to another while using or exhibiting a deadly weapon during commission of the assault. See Tex. Pen. Code Ann. §§ 22.01(a)(1), 22.02(a)(2) (Vernon Supp. 2005). Further, "deadly weapon" is defined as "(A) a firearm or anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury; or (B) anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Id. at § 1.07 (a)(17).   

A person acts recklessly, or is reckless, ⁽³⁾ with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or 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. Pen. Code Ann. § 6.03(c) (Vernon 2003).

We also look to the Penal Code for the definition of "deadly conduct," the lesser included charge sought by Collins. "Deadly conduct" occurs when a person recklessly engages "in conduct that places another in imminent danger of serious bodily injury." Id. at § 22.05(a).

Collins maintains that certain evidence entitles her to a "deadly conduct" charge. She directs us to her own testimony about running only one stop sign. Further, Collins says the investigating officer's testimony supports her contention. The officer stated that running a stop sign was reckless, but that she had never charged anyone with aggravated assault with a deadly weapon for running a stop sign, except in Collins's case. Collins also argues that because the charge instructed the jury on the conduct-oriented definition of "recklessly," the jury could rationally conclude that Collins, if guilty, was guilty only of deadly conduct.

The State argues that there is no evidence that Collins did not recklessly injure T.L. and no evidence that Collins did not use a deadly weapon to do so. The State notes that Collins: (1) admitted running the stop sign; (2) estimated she was driving thirty to thirty-five miles per hour; (3) admitted to not having a driver's license; and (4) agreed she failed to keep a proper lookout. The State contends that a rational jury could not have found that Collins's conduct was reckless - as required for a finding of deadly conduct - but that Collins did not recklessly injure T.L.

Several of our sister courts support the State's contention and have interpreted Penal Code section 22.05 (Deadly Conduct) to cover only dangerous acts that cause no physical harm to the complainant. See Walker v. State, 994 S.W.2d 199, 203 (Tex. App.--Houston [1st Dist.] 1999, pet. ref'd); Ramirez v. State, 976 S.W.2d 219, 227 (Tex. App.--El Paso 1998, pet. ref'd); Mares v. State, 903 S.W.2d 419, 422 (Tex. App.--Eastland 1995, pet. ref'd). ⁽⁴⁾ In Garcia v. State, 92 S.W.3d 574 (Tex. App.--Austin 2002, no pet.), the appellant was convicted of aggravated assault with a deadly weapon. 92 S.W.3d at 575. The Austin Court explained that a jury could not have rationally found appellant guilty only of deadly conduct because the appellant "could not have placed the complainants in imminent danger of serious bodily injury without using his truck in a manner capable of causing serious bodily injury, that is, as a deadly weapon. Given the undisputed evidence that the complainants suffered bodily injuries, the jury could not have rationally found that appellant was guilty only of deadly conduct." Id. at 576. As it is undisputed here that T.L. was seriously injured as a result of the collision, we find that Collins was not entitled to a deadly conduct charge. Issue one is overruled.

In issue two, Collins asserts the trial court erred in refusing her request to include a simple assault charge along with the aggravated assault with a deadly weapon charge. A person commits assault if she intentionally, knowingly, or recklessly causes bodily injury to another. See Tex. Pen. Code Ann. § 22.01(a)(1) (Vernon Supp. 2005). An assault becomes aggravated if the actor either "causes serious bodily injury to another" or "uses or exhibits a deadly weapon during the commission of the assault." Id. at § 22.02(a)(1)-(2).

As the State also concedes that assault can be a lesser-included offense of aggravated assault with a deadly weapon, here we need only review the second part of the Aguilar/Rousseau test. Thus, we must determine whether the record contains some evidence that would permit a rational jury to acquit Collins of aggravated assault with a deadly weapon while convicting her of assault. See Hall, 158 S.W.3d at 473. Stated differently, is there any evidence that Collins did not use or exhibit a deadly weapon?

Collins argues that the record contains evidence that her automobile was not a deadly weapon in the manner of its use. She contends that she was driving only thirty to thirty-five miles per hour, that such a speed was not excessive, and that she ran only one stop sign. Collins further argues that T.L.'s failure to wear a seatbelt increased the severity of her injuries. Collins concludes that the trial court's refusal to include an assault charge "is equivalent to declaring that every time someone runs a stop-sign and another person is injured, the person running the stop sign has committed aggravated assault with a deadly weapon."

The Penal Code includes as a deadly weapon "anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon Supp. 2005). This provision does not require a defendant to actually intend to cause death or serious bodily injury; rather, an object is a deadly weapon if a defendant intends a use of the object in which it would be capable of causing death or serious bodily injury. McCain v. State, 22 S.W.3d 497, 503 (Tex. Crim. App. 2000). Thus, the State was required to prove only that Collins's actual use or intended use of the object was capable of causing death or serious bodily injury. Johnston v. State, 150 S.W.3d 630, 637-38 (Tex. App.--Austin 2004, no pet.)(citing Garcia v. State, 92 S.W.3d 574, 575-76 (Tex. App.--Austin 2002, no pet.)). Here, Collins's actual use of her motor vehicle caused T.L. to suffer serious bodily injury. Therefore, her motor vehicle was, "by definition," capable of causing serious bodily injury. Compare Tyra v. State, 897 S.W.2d 796, 798 (Tex. Crim. App. 1995)(finding a motor vehicle actually used to cause death to be a deadly weapon because a weapon that "actually causes death is, by definition, 'capable of causing death'"). Under our statutory scheme, we find there is no evidence that would rationally support a finding that Collins assaulted T.L. but did not use a thing, in this case a car, that caused a serious bodily injury. Issue two is overruled.   

In issue three, Collins asserts the trial court committed fundamental error by submitting a jury charge authorizing conviction of aggravated assault with a deadly weapon upon facts that would only support a conviction for simple assault. Collins contends that the charge's application paragraph incorrectly instructed the jury to find simple assault rather than aggravated assault because the charge failed to require a finding that the automobile was a deadly weapon.

However, a special charge issue for an affirmative deadly weapon finding was not required in this case. Generally, an affirmative deadly weapon finding may take any of the following forms: (1) the indictment includes an allegation of a "deadly weapon," and the verdict states the defendant is guilty as charged in the indictment; (2) the indictment does not allege "deadly weapon," but does allege a weapon that is per se a deadly weapon, and the verdict states the defendant is guilty as charged in the indictment; or (3) the jury has affirmatively answered a special charge issue on "deadly weapon" use or exhibition. See Lafleur v. State, 106 S.W.3d 91, 95 (Tex. Crim. App. 2003); Polk v. State, 693 S.W.2d 391, 396 (Tex. Crim. App.1985). The first form was used here; the indictment alleged that Collins "used and exhibited a deadly weapon, to-wit: a motor vehicle, which in the manner of its use or intended use is capable of causing death or serious bodily injury," and the jury found Collins guilty of the offense of aggravated assault with a deadly weapon "as charged in the indictment." Thus, the verdict constituted an affirmative finding that Collins used or exhibited a deadly weapon in commission of the offense and a special charge issue on whether the automobile was a deadly weapon was not required.

Further, the charge's application paragraph instructed the jury to remember certain instructions. Among the instructions was one stating that a "person commits an offense if the person intentionally, knowingly, or recklessly causes bodily injury to another, and the person uses or exhibits a deadly weapon during the commission of the offense." For the jury to have convicted Collins only on facts supporting simple assault, the jury would have had to ignore that instruction. Issue three is overruled.

In issue four, Collins contends the trial court committed fundamental error by failing to limit its instruction on the definition of "recklessly" to her conduct's result, but also acknowledges that her attorney failed to object to the charge's definition.

The charge provided that "a person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur." Collins says that the charge as submitted allowed the jury to convict her for engaging in reckless behavior (a conduct-oriented charge) rather than recklessly injuring the complainant (a result-oriented charge).   

The State does not contest that the trial court erred by defining recklessness in terms of circumstances of the conduct. Rather, the State maintains that Collins was not egregiously harmed because the application paragraph properly limited the definition of recklessness.

We review jury charge error according to the standards set forth in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984)(op. on reh'g). Scheanette v. State, 144 S.W.3d 503, 507 (Tex. Crim. App. 2004). Under Almanza, an appellant who failed to object to a flawed instruction must show that the error, if any, was so egregious that she did not receive a fair and impartial trial. Almanza, 686 S.W.2d at 171. Further, if an appellant alleges that harm resulted from including "improper conduct elements in the definitions of culpable mental states," we review the charge's application paragraphs and consider whether they placed any limitations on those definitions. Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994)(citing Cook v. State, 884 S.W.2d 485, 492 n.6 (Tex. Crim. App.1994)).

Here, the trial court properly limited the definition of recklessness in the application paragraph. The application paragraph provided that the jury was to find Collins guilty only if she "intentionally, knowingly, or recklessly cause[d] bodily injury to [T.L.] . . . ." Thus, although the jury was informed that recklessness can also occur with regard to circumstances of conduct, the jury was instructed that it could only find Collins guilty if she was reckless with respect to the result of her conduct. The trial court's failure to limit the definition of recklessness in one portion of the charge when it is properly limited elsewhere does not rise to the level of egregious error. See Hughes, 897 S.W.2d at 296. Issue four is overruled.

In summary, the pertinent statutes allow for a criminal conviction in auto accidents when the driver is reckless, and when a serious bodily injury is the result of reckless driving. Although we might choose to define the offense differently were we legislators, we apply the law as it has been passed by the elected representatives of Texas.

Accordingly, we affirm the trial court's judgment.

AFFIRMED.

____________________________

HOLLIS HORTON

Justice

Submitted on June 8, 2005

Opinion Delivered November 16, 2005

Do Not Publish

Before McKeithen, C.J., Gaultney and Horton, JJ.

1.

According to T.L.'s physician, T.L. sustained injuries in the accident that have caused her to have paraplegia (a weakness of the lower extremeties with loss of sensation as well as pain). As a result, T.L. has little or no movement of her feet and limited movement of her thighs and upper legs. Further, she is confined to a wheelchair most of the time and suffers from loss of bladder control.

2.

Article 37.09 provides that an offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 1981).

3.

As the State maintains on appeal that Collins "recklessly" injured T.L., we consider only that culpable mental state.

4.

We recognized these holdings in Graham v. State, 950 S.W.2d 724,731 n.2 (Tex. App.--Beaumont 1997, withdrawn, 976 S.W.2d 913 (Tex. App.--Beaumont Oct. 15, 1998)). However, the Fourteenth Court recently has determined that deadly conduct may be a lesser included offense of aggravated assault even though the victim was seriously injured. See Ford v. State, 38 S.W.3d 836 (Tex. App.--Houston [14th Dist.] 2001, pet. ref'd); Ortiz v. State, 144 S.W.3d 225, 233 (Tex. App.--Houston [14th Dist.] 2004, pet. ref'd).