Cecil Howell, Jr. v. State ( 2015 )

In The
Court of Appeals
Seventh District of Texas at Amarillo
No. 07-15-00144-CR
No. 07-15-00145-CR
CECIL HOWELL, JR., APPELLANT
V.
THE STATE OF TEXAS, APPELLEE
On Appeal from the 264th District Court
Bell County, Texas
Trial Court Nos. 72374, 72375; Honorable Martha J. Trudo, Presiding
May 29, 2015
MEMORANDUM OPINION
Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.
Appellant Cecil Howell, Jr. was convicted of two separate offenses of aggravated
assault with a deadly weapon. The victims were his girlfriend Ladonya and her ten-
year-old son. According to the record, appellant hit each with a hammer during an
argument. Appellant was sentenced to thirty years in prison on each offense. In
challenging those convictions, he contends 1) the jury charges contained an erroneous
instruction on the culpable mental state, and 2) no meaningful limiting instruction was
given to the jury with respect to a prior conviction. We affirm the judgments.
Issue 1 – Jury Instruction on Culpable Mental State
In his first issue, appellant claims that aggravated assault with a deadly weapon
is both a result of conduct and nature of conduct offense and that the jury charge should
have included an instruction to that effect. That is, while assault causing bodily injury is
a result of conduct offense, the aggravating factor (i.e., the use or exhibition of a deadly
weapon) implicates the nature of the accused’s conduct. Thus, the charge allegedly
should have somehow referred to both when defining the requisite mental state. We
overrule the issue.
As stated in Price v. State, No. PD-0383-14, 2015 Tex. Crim. App. LEXIS 389
(Tex. Crim. App. April 15, 2015), “. . . the gravamen of the offense [is used] to decide
which conduct elements should be included in the mental-state language.” Id. at *7. “If
the gravamen of an offense is the result of conduct, the jury charge on culpable mental
state should be tailored to the result of conduct and likewise for nature-of-conduct
offenses.” Id. at *7-8. The gravamen of an assault by causing bodily injury is the result
of causing bodily injury. Landrian v. State, 268 S.W.3d 532, 533 (Tex. Crim. App.
2008). That is, “. . . the actus reus for ‘bodily injury’ aggravated assault is ‘causing
bodily injury.’" Id. at 537. And, “[t]his actus reus must be accompanied by a culpable
mental state.” Id.; see also Shelby v. State, 448 S.W.3d 431, 439 (Tex. Crim. App.
2014) (stating that the offense of aggravated assault on a public servant is a result
oriented offense with the gravamen of causing bodily injury); Sixtos v. State, No. 05-13-
00502-CR, 2014 Tex. App. LEXIS 9518, at *19 (Tex. App.—Dallas December 17, 2014,
pet. ref’d) (not designated for publication) (stating that aggravated assault by causing
bodily injury by use of a deadly weapon is a result-oriented offense and the culpable
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mental state definition in the jury charge should have solely referenced the result of
appellant’s conduct); accord Johnson v. State, 271 S.W.3d 756, 761 (Tex. App.—Waco
2008, pet. ref’d) (stating that when the assault involves causing bodily injury, the
primary focus remains on the result of the defendant’s conduct, even if he uses or
exhibits a deadly weapon). Here, the assault involved the infliction of bodily injury; so,
its gravamen involved the causing of bodily injury. Thus, the instruction pertinent to the
mental state only need have focused on “causing bodily injury,” as it did here. Thus, it
was not erroneous. Sixtos v. State, supra.1
Issue 2 – Jury Instruction on Extraneous Offenses
Next, appellant testified at trial and was cross-examined as to a prior offense of
possession of a controlled substance. The testimony was admitted without a request
for a limiting instruction. Appellant now argues that the trial court should have included,
sua sponte, an instruction in the jury charge directing the jury that the aforementioned
prior offense could only be considered for purposes of attacking his credibility. We
overrule the issue.
No request for a limiting instruction was made at the time that the evidence of the
prior conviction was offered. Therefore, the jury was entitled to consider it for all
purposes. Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001);
Brewer v. State, No. 03-10-0075-CR, 2014 Tex. App. LEXIS 1992, at *48-49 (Tex.
App.—Austin February 21, 2014, no pet.) (not designated for publication). If the limiting
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Though appellant cites Johnson v. State, 271 S.W.3d 756 (Tex. App.—Waco 2008, pet. ref’d) as
support for his position, the issue before us was not the issue before the Johnson panel. Instead, it was
asked to determine whether the crime of assault (causing bodily injury) had been completed before the
deadly weapon had been used or exhibited. More importantly, it recognized that the gravamen of the
crime remained bodily injury, even though the charge included reference to the use of a deadly weapon.
Id. at 761. Nowhere did that court suggest that the charge must include a mental state applicable to both
the gravamen of the offense and the aggravating factor, i.e. use or exhibition of a deadly weapon.
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instruction is not requested at the time the evidence is admitted, the trial court has no
obligation to limit its use in the jury charge. Delgado v. State, 235 S.W.3d 244, 251
(Tex. Crim. App. 2007). Thus, the trial court did not err in omitting an instruction of the
ilk appellant now seeks. The issue is overruled
Having overruled each issue, we affirm the judgments.
Brian Quinn
Chief Justice
Do not publish.
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