Ruth Elaine Adkins v. State ( 2008 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 2-08-078-CR
RUTH ELAINE ADKINS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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OPINION
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Appellant Ruth Elaine Adkins appeals her conviction for aggravated
assault with a deadly weapon. In two issues, she contends that the evidence
is legally and factually insufficient to support her conviction for aggravated
assault, and that the trial court erred by refusing her requested jury charge on
a lesser-included offense. We affirm.
I. Background
Appellant lived in Hood County, Texas, for about ten years along with her
two children, James Arthur Newell and Jennifer Louise Newell. Appellant used
methamphetamine for most of those years. She got methamphetamine from
her son, James, supplied methamphetamine for her daughter, Jennifer, and
smoked methamphetamine with both of her children. James had previously
been to prison and was a member of the Aryan Brotherhood prison gang.
When Jennifer and her boyfriend, James Padgett, began “shooting up”
with methamphetamine, appellant became upset and angry. Appellant accused
Padgett of “making Jennifer pass out” and then “doing sexual things” with her.
Appellant even choked Padgett in her driveway because she was so angry over
his drug use with Jennifer.
In April 2006, Jennifer and Padgett broke up briefly and Jennifer moved
back in with appellant. Appellant told Jennifer she knew what Jennifer and
Padgett were doing, she was mad about it, and, if she had anything to do about
it, they would “never get back together.” Shortly thereafter, appellant’s son,
James, brought Robert Byrd, another Aryan gang member, to appellant’s home
for a meeting.
Around April 29, 2006, appellant and James were at a gathering in
Brazos River Acres where everyone was drinking beer and hanging out on the
2
beach. Appellant told a friend and neighbor, Arvil Wayne Lee, that she was
upset and she was going to “get even” with Padgett because he was shooting
up her daughter. She said she had friends who would take care of Padgett for
her, and that she “had [the situation] under control.” That evening, appellant’s
son, James, asked Arvil to “be his alibi.”
A few days later, appellant met with Johnny Freeman, another Aryan
gang member, at Johnny’s residence. Johnny then went to Cleburne to meet
with fellow Aryan gang member, Robert.
On May 6, 2006, Robert and Daniel Roof, yet another Aryan gang
member, contacted Jennifer Perez about borrowing her truck for some
“errands” around Granbury. Rather than allow them to take her truck, Perez
insisted on accompanying the men. Daniel and Robert met Johnny at his
residence. Johnny told his girlfriend, Amber Gorman, he needed to “take care
of some business” with some friends and that he would meet her later that day.
The three men talked together in a back room. Daniel, Robert, Johnny, and
Perez then drove to a convenience store where they met James and appellant
and talked for about fifteen minutes.
After meeting with appellant, Daniel, Robert, and Johnny went looking for
Padgett. On the way to Padgett’s house in Oak Trail Shore, they talked about
how Padgett was hurting James’s sister, Jennifer. When they got to Padgett’s
3
house, Jennifer answered the door and told them that Padgett was not home,
so they left. On their way out of the Oak Trail Shores neighborhood, they saw
Padgett entering the gates and turned around. After stopping Padgett’s vehicle,
they jumped out of the truck with knives in hand. About five minutes later,
they returned to the truck with blood on them and breathing heavily. As they
left the scene, Robert used a stuffed animal in the truck to wipe the blood off
his arm and then threw the bloodied toy, as well as the knives, out of the truck
window. The three men then bought some new clothes at a Wal-Mart, stopped
at a truck stop to change, and drove to a motel in Desoto, Texas.
When Johnny’s girlfriend, Amber, returned home late that afternoon and
found that Johnny was not home, she called several people, including appellant,
looking for Johnny. Appellant told Amber that there had been a stabbing in Oak
Trail Shores and that the police thought Johnny did it. Shortly thereafter,
appellant called Amber and asked her to meet appellant at Brazos River Acres.
Once there, appellant told Amber that Johnny wanted to meet them in
Hillsboro.
Appellant and Amber drove to Hillsboro, where they met Robert and
Johnny at a gas station. Amber noticed that the men were wearing different
clothes than they had been wearing earlier. Appellant rented a nearby motel
room where the four of them went to talk.
4
While in the motel room, Robert detailed Padgett’s stabbing. He acted
proud of what he had done, and appellant appeared happy and excited. The
more Robert talked about the stabbing, the more excited and “turned on”
appellant became.
Appellant and Robert stepped out for about thirty minutes while Johnny
and Amber talked inside the motel room. Johnny cried as he told Amber about
the stabbing. When appellant and Robert returned to the room, appellant’s
demeanor had changed from excited and “turned on” to relaxed and calm.
Appellant told Amber that she needed to go to the bathroom to “wipe herself,”
which Amber understood to mean that appellant and Robert had just engaged
in sex. The next day Amber, Johnny, and appellant went to Glen Rose. Robert
did not accompany them.
Padgett was airlifted to Harris Methodist Hospital in Fort Worth after the
stabbing. Having suffered massive blood loss, he underwent surgery to repair
multiple stab wounds in his heart and his torso. He was eventually transferred
to a nursing home facility where he died of pneumonia nearly a year later. The
medical examiner listed Padgett’s cause of death as complications from multiple
stab wounds.
A Hood County grand jury indicted appellant in July 2006 for aggravated
assault with a deadly weapon.
5
Before testifying at trial, Amber received threats from members of the
Aryan Brotherhood and Aryan Circle concerning her testimony. Jennifer also
feared retaliation from the Aryan gang members. On February 12, 2008, a jury
convicted appellant of aggravated assault with a deadly weapon and sentenced
appellant to twenty years in prison and a fine of $10,000.
II. Sufficiency of the Evidence
In her first issue, appellant contends that the evidence is legally and
factually insufficient to prove that she knew a deadly weapon would be used
in the assault or that she contributed in some part toward the execution of the
attack. Appellant asserts that the evidence establishes only that she is guilty
of assault.
A. Standard of Review
In reviewing legal sufficiency, we consider all the evidence in the light
most favorable to the verdict and determine whether a rational juror, based on
the evidence and reasonable inferences supported by the evidence, could have
found the essential elements of the crime beyond a reasonable doubt. 1 We
defer to the “responsibility of the trier of fact to fairly resolve conflicts in
testimony, to weigh evidence, and to draw reasonable inferences from basic
1
… Jackson v. Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 2789
(1979); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
6
facts to ultimate facts.” 2 The jury is permitted to draw multiple inferences as
long as each inference is supported by the evidence presented at trial. 3 Each
fact need not point directly and independently to appellant’s guilt, as long as
the cumulative force of all the incriminating circumstances is sufficient to
support the conviction.4 Circumstantial evidence is as probative as direct
evidence in establishing guilt, and circumstantial evidence alone can be
sufficient to support a conviction. 5 On appeal, the standard of review is the
same for both circumstantial and direct evidence cases. 6
When reviewing the factual sufficiency of the evidence to support a
conviction, we view all the evidence in a neutral light, favoring neither party.7
We then ask whether the evidence supporting the conviction, although legally
sufficient, is nevertheless so weak that the factfinder’s determination is clearly
2
… Jackson, 443 U.S. at 318–19, 99 S. Ct. at 2789; Hooper, 214
S.W.3d at 13.
3
… Hooper, 214 S.W.3d at 15.
4
… Id. at 13; see Johnson v. State, 871 S.W.2d 183, 186 (Tex. Crim.
App. 1993), cert. denied, 511 U.S. 1046 (1994).
5
… Hooper, 214 S.W .3d at 13; Guevara v. State, 152 S.W.3d 45, 49
(Tex. Crim. App. 2004).
6
… Hooper, 214 S.W.3d at 13; Guevara, 152 S.W.3d at 49.
7
… Watson v. State, 204 S.W .3d 404, 414 (Tex. Crim. App. 2006);
Drichas v. State, 175 S.W.3d 795, 799 (Tex. Crim. App. 2005).
7
wrong and manifestly unjust or whether conflicting evidence so greatly
outweighs the evidence supporting the conviction that the factfinder’s
determination is manifestly unjust. 8 To reverse under the second ground, we
must determine, with some objective basis in the record, that the great weight
and preponderance of all the evidence, though legally sufficient, contradicts the
verdict.9
In determining whether the evidence is factually insufficient to support a
conviction that is nevertheless supported by evidence that is legally sufficient,
it is not enough that this court “harbor a subjective level of reasonable doubt
to overturn [the] conviction.” 10 We cannot conclude that a conviction is clearly
wrong or manifestly unjust simply because we would have decided differently
than the jury or because we disagree with the jury’s resolution of a conflict in
the evidence. 11 We may not simply substitute our judgment for the
factfinder’s.12 Unless the record clearly reveals that a different result is
8
… Watson, 204 S.W.3d at 414–15, 417; Johnson v. State, 23 S.W.3d
1, 11 (Tex. Crim. App. 2000).
9
… Watson, 204 S.W.3d at 417.
10
… Id.
11
… Id.
12
… Johnson, 23 S.W.3d at 12; Cain v. State, 958 S.W.2d 404, 407
(Tex. Crim. App. 1997).
8
appropriate, we must defer to the jury’s determination of the weight to be given
contradictory testimonial evidence because resolution of the conflict “often
turns on an evaluation of credibility and demeanor, and those jurors were in
attendance when the testimony was delivered.” 13 Thus, we must give due
deference to the factfinder’s determinations, “particularly those determinations
concerning the weight and credibility of the evidence.” 14
B. Elements of Aggravated Assault
A person commits aggravated assault when he or she commits an assault
as defined in Texas Penal Code section 22.01 while using or exhibiting a deadly
weapon.15 Assault is intentionally, knowingly, or recklessly causing bodily
injury to another. 16
C. Criminal Responsibility for Aggravated Assault as a Party
A person may be convicted of aggravated assault as a party “if, acting
with intent to promote or assist the commission of the aggravated assault, he
or she solicits, encourages, directs, aids, or attempts to aid” another person to
13
… Johnson, 23 S.W.3d at 8.
14
… Id. at 9.
15
… Texas Penal Code Ann. § 22.02(a)(2)(Vernon Supp. 2008).
16
… Id. § 22.01(a)(1).
9
commit the aggravated assault.17 The intent to promote or assist in the
commission of the offense goes to each element of the offense charged.18 We
look at “events occurring before, during and after the commission of the
offense and may rely on actions of the defendant which show an understanding
and common design to do the prohibited act.” 19
When a deadly weapon is alleged in the indictment as an element of the
offense, the jury is authorized to find the defendant guilty as a party only if the
State meets its burden of proving beyond a reasonable doubt that the defendant
knew a deadly weapon would be used or exhibited.20 If the jury returns a
verdict of guilty as charged in the indictment, we presume that the jury has
implicitly found beyond a reasonable doubt that the defendant used or exhibited
17
… See Texas Penal Code Ann. § 7.02(a)(2)(Vernon 2003); Hooper, 214
S.W.3d 14 n.3; Frank v. State, 183 S.W.3d 63, 72 (Tex. App.— Fort Worth
2005, pet. ref’d).
18
… See Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App.
1986); Duke v. State, 950 S.W.2d 424, 427 (Tex. App.—Houston [1st Dist.]
1997, pet. ref’d).
19
… Hooper, 214 S.W.3d at 13 (quoting Cordova v. State, 698 S.W.2d
107, 111 (Tex. Crim. App. 1985), cert. denied, 476 U.S. 1101 (1986)).
20
… Tex. Crim. Proc. Ann. art. 42.12, § 3g(a)(2) (Vernon Supp. 2008);
Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.]
2002, pet. ref’d); Barnes v. State, 62 S.W.3d 288, 303–04 (Tex. App.—Austin
2001, pet. ref’d); Taylor v. State, 7 S.W.3d 732, 740–41 (Tex. App.—Houston
[14th Dist.] 1999, no pet.).
10
a deadly weapon or, if acting as a party, knew that a deadly weapon would be
used or exhibited.21
D. Analysis
In this case, the jury implicitly found beyond a reasonable doubt that
appellant knew a deadly weapon would be used. The evidence supporting this
implied finding is as follows:
Appellant was angry at Padgett and blamed him for her daughter’s
injecting methamphetamine. She had told her daughter that, if she had her
way, the two would never get together again. Appellant admitted at trial that
she wanted someone to beat Padgett up for her. She had bragged to a friend
and neighbor that she was going to stop Padgett, that she had a lot of friends,
and that she had the matter “under control.” During the same conversation,
her son, James, a member of the Aryan Brotherhood gang, asked the neighbor
to be his “alibi.” Appellant asked Johnny, also an Aryan gang member and
someone whom appellant considered a “tough guy,” to beat up Padgett for her.
A week before the attack, Robert visited James at appellant’s home while
appellant was present. Less than an hour before the stabbing, appellant and
James met the attackers at a convenience store. Immediately after the attack,
21
… Sarmiento, 93 S.W.3d at 570; see Polk v. State, 693 S.W.2d 391,
394 (Tex. Crim. App. 1985).
11
when appellant got word that Padgett had been stabbed, the evidence shows
that appellant knew who was responsible. Appellant’s daughter, Jennifer,
believed appellant was behind the attack. Appellant drove the girlfriend of one
of the attackers to Hillsboro, rented a motel room for all the attackers, and
listened with apparent approval as Robert relayed the details of the stabbing.
The girlfriend testified that, as Robert spoke, appellant got more and more
excited and apparently engaged in sex with him after he had finished his
account.
Viewing this direct and circumstantial evidence in the light most favorable
to the verdict, we hold that a rational jury could reasonably infer that appellant
solicited and encouraged the attack, was aware that it would involve the use
of a deadly weapon, and condoned its execution after it was accomplished.
Therefore, the evidence is legally sufficient to support the verdict.
Furthermore, when we examine all the evidence in a neutral light, we
cannot say that this evidence is so weak as to render the verdict clearly wrong
and manifestly unjust. Nor can we say the great weight and preponderance of
the evidence contradicts the verdict.22 The only evidence contrary to the
22
… See Watson, 204 S.W.3d at 417; Brown v. State, 212 S.W.3d 851,
863 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d) (op. on reh’g), cert.
denied, 128 S. Ct. 1088 (2008).
12
verdict is the testimony of appellant’s friend and neighbor, Arvil Wayne Lee,
and of appellant herself. Arvil testified that he did not feel that appellant
wanted Padgett killed. Although appellant admitted at trial she asked Johnny
to beat up Padgett, she said she “never once wanted anyone harmed like that.”
She “figured that Johnny would kick his ass, like I asked him to. I never once
thought that it would take more than Johnny to do what I asked.” This
testimony clearly does not outweigh the evidence showing that appellant
solicited and encouraged the attack and was aware that it would likely involve
the use of a deadly weapon. We, therefore, hold that the evidence is also
factually sufficient to support the jury’s implied finding that appellant knew a
deadly weapon would be used.
Relying on our opinion in Wooden v. State,23 appellant further contends
that there is also no evidence that, at the time of the offense, appellant
contributed in some part toward the execution of the attack. Wooden is
inapposite to this case.
In Wooden, the appellant contended that the evidence was legally
insufficient to prove that he was a party to aggravated robbery because it
showed he was merely present at the scene of the offense and assisted in the
23
… 101 S.W.3d 542 (Tex. App.—Fort Worth 2003, pet. ref’d).
13
getaway. The question before the court was, therefore, whether proof that an
accused is present at the scene of a crime or assists in a getaway, standing
alone, is sufficient to prove whether the accused is guilty as a party.24 We
concluded it was not. Rather, we held that when the accused is present at the
scene of a crime, “[t]he evidence must show that at the time of the offense,
the parties were acting together, each contributing some part toward the
execution of their common purpose.” 25 Because there was no evidence that
Wooden knew a gun was used or exhibited in the robbery, we held that the
evidence was insufficient to prove Wooden was a party to the aggravated
robbery even though he facilitated the getaway. We did not address the
circumstances presented here where the accused is not present at the scene
of the crime, but acting with intent to promote or assist the commission of an
offense, solicits and encourages the other person to commit the offense before
the offense is committed.26
24
… Id. at 546.
25
… Id.; see also Brooks v. State, 580 S.W.2d 825, 831 (Tex. Crim. App.
1979) (holding that under former party statute, in instances where the accused
is present during the commission of an offense, evidence must show that the
accused encouraged the commission of the offense by acts, words, or other
assistance).
26
… Tex. Penal Code Ann. § 7.02(a)(2).
14
Here, the evidence shows that appellant, acting with intent to promote
the commission of the aggravated assault, solicited and encouraged Johnny to
commit the offense. The fact that she was not physically present when the
offense was committed and did not contribute some part to the stabbing of
Padgett at the time of the offense is immaterial under the circumstances of this
case. As we observed in Wooden, section “7.02(a)(2) does not require that a
party’s actions constitute one or more elements of the intended offense, only
that the party’s actions show the intent to promote or assist the offense and
that the party encouraged, solicited, directed, or aided the commission of the
offense.” 27 The plain language of section 7.02(a)(2) requires nothing more, and
we are not inclined to rewrite the statute to require more than the legislature
intended.
We overrule appellant’s first issue.
III. Lesser Included Offense
In issue two, appellant claims that the trial court erred in refusing her
requested jury charge on assault as a lesser included offense. Appellant
contends that there is some evidence that she was unaware that a deadly
weapon would be used. She argues that since the aggravated assault charge
27
… Wooden, 101 S.W.3d at 548 n.1; see Tex. Penal Code Ann. §
7.02(a)(2).
15
was based on use of a deadly weapon, any evidence that she was unaware that
a deadly weapon would be used is some evidence that she was not liable for
the aggravating element and therefore, if guilty, guilty only of assault.
We use a two-step analysis to determine whether appellant was entitled
to a lesser included offense instruction.28 First, the lesser offense must come
within article 37.09 of the code of criminal procedure. 29 Article 37.09(3)
provides, “An offense is a lesser included offense if . . . it differs from the
offense charged only in the respect that a less culpable mental state suffices
to establish its commission.30 Assault satisfies this first step.31
The next step is to determine whether some evidence exists that would
permit a jury to rationally find that if appellant is guilty, she is guilty only of the
lesser offense. 32 This step acknowledges that there are factual circumstances
in which an offense is indeed a lesser included offense under the first step, but
28
… Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007);
Rousseau v. State, 855 S.W.2d 666, 672–73 (Tex. Crim. App.), cert. denied,
510 U.S. 919 (1993).
29
… Tex. Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); Moore v.
State, 969 S.W.2d 4, 8 (Tex. Crim. App. 1998).
30
… Tex. Code Crim. Proc. Ann. art. 37.09(3) (Vernon 2006).
31
… Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001).
32
… Hall, 225 S.W.3d at 536; Salinas v. State, 163 S.W.3d 734, 741
(Tex. Crim. App. 2005); Rousseau, 855 S.W.2d at 672–73.
16
a jury charge instruction is not required because the condition—that the
defendant is not guilty of the greater offense but is guilty only of the lesser—is
not met.33 In such a case, the offense remains a lesser included, but the trial
court is not required to instruct the jury on it.34
The evidence must be evaluated in the context of the entire record.35
There must be some evidence from which a rational jury could acquit the
defendant of the greater offense while convicting her of the lesser.36 The court
may not consider whether the evidence is credible, controverted, or in conflict
with other evidence. 37 Anything more than a scintilla of evidence may be
enough to entitle a defendant to a lesser charge. 38 A charge on the lesser
included offense is not required when the defendant presents no evidence or
presents evidence that no offense was committed and there is no evidence
33
… Pickens v. State, 165 S.W.3d 675, 679 (Tex. Crim. App. 2005); see
also Irving v. State, 176 S.W.3d 842, 845–46 (Tex. Crim. App. 2005);
Hayward v. State, 158 S.W.3d 476, 478 (Tex. Crim. App. 2005).
34
… Pickens, 165 S.W.3d at 679.
35
… Moore, 969 S.W.2d at 8.
36
… Id.
37
… Id.
38
… Hall, 225 S.W.3d at 536.
17
otherwise showing that the defendant is guilty of a lesser included offense.39
A defendant is entitled to a charge on assault only if there is more than a
scintilla of evidence to show that, if guilty at all, the defendant is only guilty of
assault.
There is nothing in the record of this case to suggest that appellant acted
alone. The evidence is uncontroverted that she acted with others. Further, it
is undisputed that appellant’s cohorts used a deadly weapon in the offense and
the evidence shows that the attack would not have occurred without
appellant’s encouragement. There is no evidence that the attackers would have
acted without appellant’s encouragement, or that they committed only an
assault. The evidence was undisputed that Padgett was assaulted with knives
that in their manner of use and intended use were capable of causing death or
serious bodily injury.
Because there is no evidence that appellant acted alone and not as a
party, or that the offense committed was a mere assault, the trial court did not
abuse its discretion in refusing appellant’s requested instruction on assault as
a lesser included offense.40 We overrule point number two.
39
… Lofton v. State, 45 S.W.3d 649, 652 (Tex. Crim. App. 2001).
40
… See Moore, 969 S.W.2d at 8; Bruton v. State, 921 S.W.2d 531,
537– 538 (Tex. App.—Fort Worth 1996, pet. ref’d)(Evidence that defendant
18
Having overruled all of appellant’s issues, we affirm the judgment.
JOHN CAYCE,
CHIEF JUSTICE
PANEL: CAYCE, C.J.; HOLMAN and GARDNER, JJ.
PUBLISH
DELIVERED: December 4, 2008
aided accomplice who used deadly weapon was found sufficient to support
defendant’s guilt as a party to aggravated offense).
19