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 2008-01

Donald Carl Beason v. State ( 2008 )


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  •                 NO. 12-06-00051-CR

     

    IN THE COURT OF APPEALS

     

    TWELFTH COURT OF APPEALS DISTRICT

     

    TYLER, TEXAS

     

     

    DONALD CARL BEASON, §          APPEAL FROM THE 114TH

    APPELLANT

     

    V.        §          JUDICIAL DISTRICT COURT OF

     

    THE STATE OF TEXAS,

    APPELLEE   §          SMITH COUNTY, TEXAS

     

     

     


    OPINION

                Donald Carl Beason appeals his conviction for robbery, for which he was sentenced to community supervision for two years. Appellant raises five issues on appeal. We affirm.

     

    Background

                Appellant was admitted to East Texas Medical Center (“ETMC”) in Carthage, Texas (“ETMC Carthage”) for an apparent heart attack.  Appellant was treated for a clot and was transferred by ambulance to ETMC in Tyler, Texas (“ETMC Tyler”).  There, Appellant underwent a heart catheterization procedure and was subsequently told that he needed immediate open heart surgery. 

                Appellant later learned that the same doctor who performed the catheterization was also scheduled to perform Appellant’s surgery the next morning. Upon receiving this information, Appellant requested a copy of his medical records.1

      Appellant’s request was denied at that time because the records department was not open and would not be open until the next morning.  Appellant asked for his chart containing the original records. Thereafter, Appellant left the hospital with his original records to seek a second opinion elsewhere.

                As Appellant and his wife made their way to the exit, Marilyn Renee Rolling, a hospital security guard, attempted to stop them and seize the bag Appellant was carrying.  A scuffle ensued between Appellant and Rolling.  Appellant and his wife left in their car, but were stopped by police. Appellant’s wife told the police officer who stopped them that Appellant was having a heart attack.  The officer directed Appellant’s wife to drive to Trinity Mother Frances Hospital (“Trinity Mother Frances”).  Appellant was examined at Trinity Mother Frances.  Following Appellant’s examination, the medical records that Appellant’s wife gave to the Trinity Mother Frances staff were returned to Appellant’s wife.  Appellant’s wife then turned over the records to law enforcement.  Following his examination at Trinity Mother Frances, Appellant learned that he did not immediately require heart surgery.

                Appellant was charged by indictment with robbery.  Specifically, the indictment alleged that Appellant, while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally, knowingly, or recklessly caused bodily injury to Rolling, by striking her with his hand.  Appellant pleaded “not guilty,” and the matter proceeded to jury trial.

                Rolling testified as the State’s first witness.  Rolling stated that at around 2:00 a.m. on January 12, 2004, she received a call from a nurse who told her that a patient was leaving the hospital with some charts.  Rolling further stated that she encountered Appellant, and reached unsuccessfully for his bag as Appellant continued walking.  Rolling testified that she told Appellant, who still had an IV in his arm that he had not yet been released from the hospital and would need to return so he could have the IV removed and be discharged against medical advice. Rolling further testified that she stood in front of Appellant, grabbed Appellant, grabbed Appellant’s shirt, and grabbed Appellant’s arm, all in an attempt to thwart Appellant’s exit, but Appellant continued his egress unabated.  Rolling stated that when she reached the exit, Appellant struck her in the face, causing a lens to pop out of her glasses.  Rolling further stated that she noticed she was bleeding after Appellant struck her.  Rolling admitted to striking Appellant multiple times, including hitting Appellant in the chest.  Rolling testified that eventually she and another security guard, Sam Wagner, realized they would not be able to physically restrain Appellant so they let him leave, but continued to verbally instruct Appellant not to leave.  Rolling further testified that she received two stitches for the injury caused by Appellant’s blow to her face.

                Former ETMC floor technician Jerry Jones testified as the State’s next witness. Jones testified that on the night in question, he observed Appellant walking quickly past the cafeteria with a security guard pursuing him.  Jones further testified that the two were talking back and forth to one another as they approached the exit.  Jones stated that once Appellant was outside, the security guard reached for his bag and Appellant hit her, breaking her glasses.  Jones further stated that the security guard then lunged at Appellant and hit him as the two scuffled.  Jones testified that Appellant and his wife left following the altercation. 

                Sam Wagner testified next on the State’s behalf.  Wagner testified that he was also a security Guard for ETMC and that he grabbed hold of Appellant during Appellant’s attempt to leave the hospital. Wagner’s testimony was largely consistent with Rolling’s account.  Wagner further testified that if, in fact, Appellant were suffering a heart attack, it would have been in his best interest to stay in the hospital.  Wagner stated that patient safety was the “number one duty” and described his efforts to prevent Appellant’s exit as “encouraging him not to leave.”

                ETMC Release of Information Clerk Cynthia Woods testified as the State’s next witness.  Woods testified that the medical records department had care and control of the records at issue while ETMC had custody of such records.  Woods further testified that the value of the pages in Appellant’s medical chart, based on the copy fee per page, was $38.31. 

                Tyler Police Department Officer Richard Strother testified next on the State’s behalf.  Strother testified that he arrived on the scene to find a fellow officer, whom he identified as Officer Leigeber, stopped behind a vehicle with its emergency flashers activated.  Strother stated that he followed Leigeber to Trinity Mother Frances because one of the passengers in the stopped vehicle was complaining of chest pains.  Strother further stated that once inside Trinity Mother Frances, he learned of the disturbance that had occurred at ETMC Tyler and began to investigate.  Strother testified that he spoke with Appellant’s wife and a Tyler police sergeant spoke to Appellant.  Strother further testified that he overheard Appellant say “he had knocked the hell out of two security guards.”  Strother stated that he noted a small scratch on the top of Appellant’s right hand that had some blood on it.  Strother further stated that he spoke to Appellant’s wife, and asked her if she had any documents belonging to ETMC.  Strother testified that Appellant’s wife then turned over Appellant’s medical records to him.  Strother further testified that he encountered the two security guards who were earlier involved in the scuffle with Appellant and stated that they were still wearing their uniforms.  Following Strother’s testimony, the State rested.  Appellant made a motion for instructed verdict, which was denied.

                Appellant’s wife, Mary Beason, testified first on Appellant’s behalf. Beason testified that  on January 8, 2004, she and Appellant were at their home when Appellant began complaining of chest pains and pains in his arm. Beason stated that she called 9-1-1 and that Appellant was taken to ETMC Carthage by ambulance.  Beason further stated that following treatment at ETMC Carthage, Appellant was transferred to ETMC Tyler for a heart catheterization, a procedure they were told would be performed by a specialist.  Beason testified that though she met the physician who performed the heart catheterization, a surgeon never came by to meet with them, despite multiple requests.  Beason further testified that she and her husband ultimately lost faith in the process at ETMC and decided to leave.  Beason stated that she and her husband requested copies of his medical records several times before leaving.  Beason further stated that they were given a copy of Appellant’s medical records to review, which she ultimately took with them.  Beason also stated that as she and Appellant searched for the exit, a female security guard addressed Appellant, exclaiming, “Are the papers in the bag?”  According to Beason, when Appellant responded “No,” the security guard grabbed his arm, which still had an IV in it, and took the bag from him.  Beason continued, stating that the security guard passed them and blocked their exit.  Beason testified that as Appellant attempted to exit, the security guard again grabbed Appellant’s arm in spite of Beason’s pleas, “Don’t touch him.  He’s a heart patient.”  Beason further testified that, once outside, Appellant continued in his attempt to break free from the security guard and fell into the flower bed.

                Beason stated that she and her husband made their way to their car and left ETMC Tyler for the University of Texas Health Center.  Beason further stated that en route, they were stopped by a police officer.  Beason testified that she told the officer her husband was having a heart attack and that the officer told her she had just passed Trinity Mother Frances. Beason further testified that she and Appellant drove to Trinity Mother Frances.  Beason stated that she gave the medical records to Trinity Mother Frances personnel and later, after getting the records back, she gave them to a police officer.  Beason further stated that during his conversation with a police officer, Appellant stated, “How would I take time out of having a heart attack to beat the hell out of two security guards.”  Beason testified that Appellant ultimately had open heart surgery in Arkansas.  On cross examination, Beason further testified that she did not know whether Appellant struck the female security guard as they left ETMC Tyler that night.  Beason denied being told that she could not leave the hospital with Appellant’s original medical records or that the records were the hospital’s property. Rather, Beason stated that she was told by the nursing supervisor on the phone that “she would not take the medical records away from a heart patient.”  Beason further stated that she was not aware of federal law as it pertained to Appellant’s medical records.

                Appellant testified next on his own behalf.  Appellant recounted the same events as had his wife, relating to his decision to leave ETMC Tyler on the night in question.  Appellant stated that he was told he needed to have bypass surgery immediately.  Appellant testified that he requested copies of his medical records several times, but was not given the copies he requested.  Appellant testified that he believed the records were his.  Appellant further testified regarding his struggle with the two security guards.  Appellant stated that he was suffering chest pains during the struggle.  Specifically, Appellant stated that he “felt like an elephant [was] sitting on [his] chest,” and that this pain continued even following their arrival at Trinity Mother Frances.  Appellant confirmed the accuracy of his wife’s testimony that he stated to a police officer, “How would I take time out of having a heart attack to beat the hell out of two security guards.”  Appellant stated that he still believed the records to be his and that he thought it was necessary to take them for his personal health and welfare. On cross examination, Appellant denied telling a doctor at Trinity Mother Frances that he punched a security guard who had grabbed his arm.  Appellant later testified that he did not have any knowledge of intentionally striking Rolling, and further denied striking Rolling or Wagner.  Appellant stated that no one told him he could not take his medical records from ETMC Tyler.  Appellant further stated that he had bypass surgery at a Veterans Administration hospital in Little Rock, Arkansas approximately three weeks following the incident.

                Kevin Jones, criminal investigator for the Panola County District Attorney, testified as Appellant’s next witness.  Jones testified that Appellant had a good reputation in his community for being a peaceable and law abiding citizen.  Jones further testified that Appellant had a good reputation in his community for being a truthful person.  Jones also stated that Beason had a good reputation in her community for being a truthful person.

                Barry Washington testified next on Appellant’s behalf.  Washington testified that he spent twenty-three years in Panola County, Texas as a state trooper and was currently employed by Panola County at the adult district probation office.  Washington testified that he had known Appellant for twenty-four years and that Appellant had a reputation in his community for being a peaceable, law abiding, and truthful person.  Washington also stated that Beason had a reputation in the community for being a truthful person.  Following Washington’s testimony, Appellant rested. 

                In rebuttal, the State called ETMC Tyler registered nurse Amber Moore. Moore testified that she was currently working in the cardiovascular intensive care unit.  Moore further testified that at the time in question, she was working in the intermediate cardiac unit at ETMC Tyler.  Moore identified Appellant as a patient who was in her unit on the night in question.  Moore recalled speaking to Appellant concerning his review of his medical records.  Moore testified that when Appellant requested to take his medical records, she called Dianne Ohmes, the house supervisor, because she was not familiar with hospital policy in this regard.  Moore further testified that after speaking to Ohmes, she informed Appellant that he would need to have someone in the medical records department make copies of the medical records.  Moore stated that she informed him of this fact at least five times and further stated that she informed Appellant that the medical records department would not be able to make copies until it opened in the morning.  Moore testified that Appellant took the records to his room while discussing a matter with the nursing supervisor.  Moore further testified that Appellant spoke to the vice president of the hospital.  Moore stated that Appellant and his wife subsequently left the room and that Appellant left an empty binder in which the medical records are ordinarily kept at the nurses’ station.  On cross examination, Moore discussed the notes she had made on Appellant’s chart.

                ETMC Tyler Administrative Chief Executive Officer Robert Evans testified as the State’s next rebuttal witness.  Evans testified that he recalled speaking to a patient on the phone in the early morning hours of January 12, 2004, but did not remember the patient’s name.  Evans further testified that the original medical records are the property of the hospital.  Evans stated that in his twenty-five years of experience, he had never allowed a person to take any original records from the hospital.  Evans was permitted to read the following passage from the ETMC Tyler Administrative Manual:

     

    ...The patient’s right of access in no way abrogates the hospital’s property rights in its record and its right to establish reasonable procedures for access to the patient’s record.

     

    East Texas Medical Center recognizes the patient or his authorized representative’s right of access to his medical record for review and to request correction or amendment to the record, providing the following requirements are met.  However, if a physician determines that access to the information could be harmful to the physical, mental, or emotional health of the patient, the physician may recommend that the medical record information not be disclosed to the patient ....

     

    Procedure, number one, the patient must complete an authorization and request form.  Number two, the attending physicians may be notified that the patient has requested access to his medical record.  Number three, a designated hospital employee will be present at all times during the review.  Number four, prepayment of reasonable approved fees for copies, if requested, will be assessed.  Number five, a reasonable period of time is required between request and review.  The review will take place during regular working hours, Monday through Friday, 8:00 a.m. through 4:30 p.m.

     

    Evans testified that, to the best of his knowledge, what he read was the policy in effect on the date in question.  On cross examination, Evans stated that in an emergency situation, if a hospital or another clinical practitioner wanted a copy of a record, the record would be sent to them immediately.

                Ohmes testified as the State’s next rebuttal witness.  Ohmes testified that, on the night in question, she was employed by ETMC Tyler as “House Supervisor.”  Ohmes further testified that she told Appellant he could not take any medical records, but that copies would be made available to him between 8:00 a.m. and 4:00 p.m. the next day.  Ohmes stated that if another hospital or emergency room contacted them wanting medical records on a patient at 3:00 a.m., she would have gotten the records to them.  Ohmes further stated that she, at no time, gave Appellant permission to leave the hospital with the medical records.  At the conclusion of Ohmes’s testimony, both the State and Appellant rested and closed.

                Ultimately, the jury found Appellant guilty as charged.  Following a trial on punishment, the jury assessed Appellant’s punishment at confinement for two years, but recommended that Appellant’s sentence be probated for two years.  The trial court sentenced Appellant accordingly, and this appeal followed.

    Evidentiary Sufficiency

                In his first issue, Appellant contends that the evidence was legally insufficient to support his conviction.  In his fifth issue, Appellant contends that the evidence was factually insufficient to support his conviction.

    Legal Sufficiency

                Legal sufficiency is the constitutional minimum required by the Due Process Clause of the Fourteenth Amendment to sustain a criminal conviction. See Jackson v. Virginia, 443 U.S. 307, 315–16, 99 S. Ct. 2781, 2786–87, 61 L. Ed. 2d 560 (1979); see also Escobedo v. State, 6 S.W.3d 1, 6 (Tex. App.–San Antonio 1999, pet. ref’d).  The standard for reviewing a legal sufficiency challenge is whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt.  See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; see also Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim. App. 1993).  The evidence is examined in the light most favorable to the jury’s verdict.  See Jackson, 443 U.S. at 320, 99 S. Ct. at 2789; Johnson, 871 S.W.2d at 186.  A successful legal sufficiency challenge will result in rendition of an acquittal by the reviewing court.  See Tibbs v. Florida, 457 U.S. 31, 41–42, 102 S. Ct. 2211, 2217–18, 72 L. Ed. 2d 652 (1982).

                The sufficiency of the evidence is measured against the offense as defined by a hypothetically correct jury charge.  See Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). Such a charge would include one that “accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the defendant is tried.”  Id. 

                To support a conviction for robbery, the evidence must support that the accused, in the course of committing theft and with intent to obtain or maintain control of the property, intentionally, knowingly, or recklessly caused bodily injury to another or intentionally or knowingly threatened or placed another in fear of imminent bodily injury or death.  See Tex. Penal Code Ann. § 29.02(a) (Vernon 2003).  Theft consists of the unlawful appropriation of property, i.e., without the owner’s effective consent, with the intent to deprive the owner of the property.  See Tex. Penal Code Ann. § 31.03(a) (Vernon Supp. 2007).

    Ownership

                An “owner” of property includes a person who has possession of the property, whether lawful or not or a greater right to possession of the property than the actor.  See Tex. Penal Code Ann. §1.07(a)(35)(A) (Vernon Supp. 2007).  Appellant first argues that he had a superior right to possession of the records he took and, therefore, was the owner of those records.  Appellant’s contention is based on his interpretation of portions of the Health Insurance Portability and Accessibility Act of 1996 (“HIPAA”). Specifically, Appellant notes that (1) an entity covered by HIPPA is required to disclose health information to an individual when requested,2 (2) an individual has a right of access to inspect and obtain a copy of protected health information about the individual in a designated record set,3 and (3) the covered entity must, among other things, provide the access requested.4  However, each of the code sections to which Appellant cites presupposes that the covered entity has a right to possess such health records.  While the code sections speak to an individual’s rights of disclosure and access, they do not make reference or otherwise create any superior right of possession such as is claimed by Appellant.

                In the instant case, Woods testified that ETMC had custody, care, and control of Appellant’s original medical records.  Furthermore, Evans testified that the original medical records are the property of the hospital.  Ohmes testified that she told Appellant he could not take any medical records, but that copies would be made available to him between 8:00 a.m. and 4:00 p.m. the next day.  Ohmes also stated that she, at no time, gave Appellant permission to leave the hospital with the medical records.  From the foregoing, we conclude that there was legally sufficient evidence that the hospital was the legal owner of the records.  See Tex. Penal Code Ann. §1.07(a)(35)(A).

    Value

                Appellant next argues that the sole evidence regarding the value of the records was Woods’s testimony that the value of the pages in Appellant’s medical chart, based on the copy fee per page, was $38.31 and that there was no evidence of the actual value of the sheets of paper, which could not be separated from the information on them.

                The value of property taken is either (1) the fair market value of the property at the time and place of the offense or (2) the cost of replacing the property within a reasonable time after the offense if its fair market value cannot be ascertained.  See Tex. Penal Code Ann. § 31.08(a) (Vernon 2003).  “Market value” as it relates to stolen property means the amount of money that the property would sell for in cash, giving a reasonable time for selling it. See Johnson v. State, 903 S.W.2d 496, 498 (Tex. App.–Fort Worth 1995, no pet.).  The owner of property is competent to testify about the value of his own property in general and commonly understood terms.  Id.  When an owner testifies, the presumption must be that the owner is testifying to an estimation of the fair market value.  Id. (citing Sullivan v. State, 701 S.W.2d 905, 909 (Tex. Crim. App. 1986)).  Testimony of this nature is an offer of the witness’s best knowledge of the value of his property and constitutes sufficient evidence for the trier of fact to make a determination about value based on the witness’s credibility.  Id.  This is true even absent a specific statement about “market value.” Id.  If the defendant wishes to rebut the owner’s opinion, he must offer controverting evidence about the value of the property.

                In the case at hand, Woods testified that she worked at ETMC Tyler as a release of information clerk.  Woods testified that the medical records department in which she worked had care and control of the records at issue while ETMC had custody of such records. Woods further testified that the value of the pages in Appellant’s medical chart, based on the copy fee per page, was $38.31.  We conclude that the aforementioned evidence adequately supports that the records at issue had a fair market value of $38.31 because they could be sold as copies for that amount.  Therefore, we hold that there was legally sufficient evidence as to the records’ fair market value. 

                Use of Force5

                Appellant next argues that there was no evidence that the documents were obtained by force.  Rather, Appellant argues that the evidence of force occurred after Appellant had taken the documents.  However, the State was not required to prove that Appellant obtained the documents by use of force.  Rather, to prove the offense of robbery, the State need only prove that the person’s actions were committed in the course of committing a theft.  See Tex. Penal Code Ann. § 29.02(a).  The term “in the course of committing a theft” means conduct that occurs in an attempt to commit, during the commission, or in the immediate flight after an attempt or commission of a theft.  See Tex. Penal Code Ann. § 29.01(1) (Vernon 2003). 

                In the case at hand, Rolling testified that when she reached the exit, Appellant struck her in the face, causing a lens to pop out of her glasses. Jones also testified that when Appellant was outside, the security guard reached for his bag and Appellant hit her, breaking her glasses.  Thus, we hold that there was legally sufficient evidence that Appellant, in the course of committing a theft, caused bodily injury6 to another. Appellant’s first issue is overruled.

    Factual Sufficiency

                Turning to Appellant’s contention that the evidence is not factually sufficient to support his conviction, we must first assume that the evidence is legally sufficient under the Jackson standard.  See Clewis v. State, 922 S.W.2d 126, 134 (Tex. Crim. App. 1996). We then consider all of the evidence weighed by the jury that tends to prove the existence of the elemental fact in dispute and compare it to the evidence that tends to disprove that fact. See Santellan v. State, 939 S.W.2d 155, 164 (Tex. Crim. App. 1997).  Although we are authorized to disagree with the jury’s determination, even if probative evidence exists that supports the verdict, see Clewis, 922 S.W.2d at 133, our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony.  Santellan, 939 S.W.2d at 164.  Where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt v. State, 932 S.W.2d 88, 96 (Tex. App.–El Paso 1996, pet. ref’d).  Ultimately, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine our confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex. Crim. App. 2000); see also Watson v. State, 204 S.W.3d 404, 417 (Tex. Crim. App. 2006) (evidence is factually insufficient only when reviewing court objectively concludes that the great weight and preponderance of the evidence contradicts the jury’s verdict).

                Appellant limits his factual sufficiency contention to the proof of value of the records at issue.  We have reviewed the record in its entirety.  We iterate that our evaluation should not substantially intrude upon the jury’s role as the sole judge of the weight and credibility of witness testimony, see Santellan, 939 S.W.2d at 164, and where there is conflicting evidence, the jury’s verdict on such matters is generally regarded as conclusive.  See Van Zandt, 932 S.W.2d at 96.  Woods’s testimony was the sole testimony related to the records’ value. Appellant elected not to cross examine Woods.  Our review of the record as a whole, with consideration given to all of the evidence, both for and against the jury’s finding, has not revealed to us any evidence that causes us to conclude that the proof of guilt is so obviously weak or is otherwise so greatly outweighed by contrary proof as to render Appellant’s conviction clearly wrong or manifestly unjust.  Therefore, we hold that the evidence is factually sufficient to support the jury’s verdict.  Appellant’s fifth issue is overruled.

    Charge Instruction on Necessity

                In his second issue, Appellant argues that the trial court erred in refusing to instruct the jury in its charge regarding the justification of necessity.  Upon a timely request, a defendant has the right to an instruction on any defensive issue raised by the evidence, whether such evidence is strong or weak, unimpeached or contradicted, regardless of what the trial court may or may not think about the credibility of this evidence.  McGarity v. State, 5 S.W.3d 223, 226 (Tex. App.–San Antonio 1999, no pet.) (citing Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991)).  A charge on a defensive issue is required if the accused presents affirmative evidence that would constitute a defense to the crime charged and a jury charge is properly requested.  See id.  If the issue is raised by any party, refusal to submit the requested instruction is an abuse of discretion.  McGarity, 5 S.W.3d at 226.  When the evidence fails to raise a defensive issue, the trial court commits no error in refusing a requested instruction.  See id. at 227. 

                For the evidence to support submission of the necessity defense to the jury, the defendant must admit to the offense.  Id.; see Allen v. State, 971 S.W.2d 715, 720 (Tex. App.–Houston [14th Dist.] 1998, no pet.).  The necessity instruction is not required unless there was evidence from the accused admitting the offense, and henceforth claiming justification for having committed the offense because of other facts.  See Maldano v. State, 902 S.W.2d 708, 712 (Tex. App.–El Paso 1995, no pet.).  One cannot establish that an act is justified without first identifying or admitting to the commission of the act.  Id. 

                In the case at hand, Appellant did not admit to committing robbery.  Rather, Appellant sought to challenge the hospital’s ownership of the records he took and declined to admit that he struck Rolling. Therefore, we hold that the trial court did not err in refusing to instruct the jury on the defense of necessity in its charge.  Appellant’s second issue is overruled.

     

    Charge Instruction on Duress

                In his third issue, Appellant argues that the trial court erred in refusing to instruct the jury in its charge on the defense of duress.  “When raised by the evidence and timely requested, a defendant is entitled to a jury instruction on the affirmative defense of duress if he engaged in the proscribed conduct because he was compelled to do so by threat of imminent death or serious bodily injury to himself or another.”  Shaw v. State, 874 S.W.2d 115, 119 (Tex. App.–Austin 1994, no pet.) (emphasis added).  Thus, similar to the justification of necessity, the affirmative defense of duress requires that the accused admit to having engaged in the proscribed conduct. See, e.g., Bernal v. State, 647 S.W.2d 699, 706 (Tex. App.–Dallas 1983, no pet.) (appellant’s denial of having had sexual intercourse with complainant did not raise issue of his having “engaged in the proscribed conduct”).  As set forth above, Appellant did not admit to committing robbery in the instant case.  Therefore, we hold that the trial court did not err in refusing to instruct the jury on the defense of duress in its charge.  Appellant’s third issue is overruled.

     

    Charge Instruction Regarding Definition of “Owner”

                In his fourth issue, Appellant argues that the trial court erred in failing to properly instruct the jury regarding the definition of “owner” for purposes of the theft and robbery statutes.  Specifically, Appellant argues that the jury should have been instructed that an owner includes a person who has a greater right to possession of the property than the actor at the time of the alleged commission of the offense. When reviewing charge error, we employ a two step analysis. Washington v. State, 930 S.W.2d 695, 698 (Tex. App.–El Paso 1996, no pet.).  We must first determine whether error actually exists in the charge.  See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984); Washington, 930 S.W.2d at 698.  In making this determination, we view the charge as a whole and our review should not be limited to a series of isolated statements or parts of the charge standing alone.  Washington, 930 S.W.2d at 698; see Holley v. State, 766 S.W.2d 254, 256 (Tex. Crim. App. 1989).  Second, we must determine whether sufficient harm resulted from the error to require reversal.  Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d at 698.  Which harmless error standard applies depends upon whether the defendant objected.  Abdnor v. State, 871 S.W.2d 726, 731–32 (Tex. Crim. App. 1994); Washington, 930 S.W.2d at 698.  In a case where the defendant failed to object, he must show that he suffered actual egregious harm.  See Almanza, 686 S.W.2d at 171; Washington, 930 S.W.2d at 698.

                In the case at hand, Appellant argues that the temporal addition to the definition of “owner” was necessary to allow the jury to consider whether Appellant had gained a superior right to possession by the time he and his wife left the hospital inasmuch as they had requested copies and been told that copies would not be available until morning.  However, the trial court defined the word “owner” in accordance with Texas Penal Code, section 1.07(a)(35)(A).  Moreover, in the application  paragraph, the jury was charged that it could find Appellant guilty of robbery if it found that on or about January 12, 2004, in Smith County, Texas, Appellant did then and there unlawfully appropriate, by acquiring or exercising control over property from the person of the owner with intent to deprive the owner of the property.  The term “then and there,” as used in the application paragraph, means at the time and place last previously mentioned or charged.  See Black’s Law Dictionary 1478 (6th ed. 1990).  Thus, the jury was given a temporal framework within which to consider the evidence and make its finding.  Further still, as set forth above, the rights of disclosure and access in HIPPA do not serve to create a superior right of possession in Appellant to the medical records either before or after he  requested copies of the documents.  Having reviewed the charge as a whole in light of the entirety of the record, we hold that the trial court did not err in declining to submit Appellant’s temporal element to its definition of the word “owner.” Appellant’s fourth issue is overruled.

    Disposition

                Having overruled Appellant’s first, second, third, fourth, and fifth issues, we affirm the trial court’s judgment.

                                                                                                         JAMES T. WORTHEN   

                                                                                                                     Chief Justice

    Opinion delivered January 9, 2008.

    Panel consisted of Worthen, C.J., Griffith, J., and Hoyle, J.

     

     

    (DO NOT PUBLISH)


    1 Ownership of these medical records is a contested issue in this case.  Our reference to these records as “Appellant’s medical records” is made solely for ease of reference and should be interpreted as “medical records pertaining to Appellant.”

    2 See 45 C.F.R. § 164.502(a)(1), (2) (2007).

    3 See 45 C.F.R. § 164.524 (2007).

    4 See 45 C.F.R. § 164.524(c) (2007).

    5 Appellant raises this issue under his factual sufficiency argument.  We presume that Appellant intended to raise this “no evidence” issue as a legal sufficiency contention.

    6 Appellant has not argued that the evidence is insufficient to support the element of bodily injury.  Bodily injury is defined as physical pain, illness, or any impairment of physical condition.  Tex. Penal Code Ann. § 1.07(a)(8) (Vernon 2007).  The definition is broad and encompasses even relatively minor physical contacts as long as they constitute more than mere offensive touching.  Lane v. State, 763 S.W.2d 785, 786 (Tex. Crim. App. 1989); In re M.C.L., 110 S.W.3d 591, 600 (Tex. App.–Austin 2003, no pet.).  The evidence in the instant case supports contact amounting to more than offensive touching inasmuch as it was enough to cause the lens to pop out of Rolling’s glasses and break the skin ultimately requiring two stitches.