Tony Wayne Cornett v. State ( 2004 )

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                                     NUMBER 13-03-036-CR

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG

TONY WAYNE CORNETT,                                                 Appellant,

v.

THE STATE OF TEXAS,                                                      Appellee.

    On appeal from the 177th District Court

of Harris County, Texas.

    MEMORANDUM OPINION

Before Justices Hinojosa, Yañez, and Castillo

Memorandum Opinion by Justice Castillo

         A jury convicted appellant Tony Wayne Cornett of aggravated assault by threat. The trial court sentenced him as an habitual offender to confinement for thirty-five years in the Institutional Division of the Texas Department of Criminal Justice. The trial court has certified that Cornett has the right of appeal. See Tex. R. App. P. 25.2. By two issues, Cornett complains of factual insufficiency and improper jury argument. We affirm.

I. RELEVANT FACTS

         This is a memorandum opinion not designated for publication. The parties are familiar with the facts. We will not recite them here except as necessary to advise the parties of our decision and the basic reasons for it. See Tex. R. App. P. 47.4.

         Cornett and his brother, Terry Cornett, lived together. They argued a lot. On June 21, 2002, Cornett was upset because Terry had taken Cornett's cigarette lighter. Cornett was "acting kind of crazy" and "was upset before he even came home," Terry told the jury. The disagreement continued for some time. Terry eventually refused to argue anymore. Cornett became agitated and picked up a carpet-cutting blade. Terry testified the blade was sharp enough to rip up carpet. He readily agreed with the prosecutor that it "could do some damage to someone."

         Terry told Cornett he was going to call the police and went to the phone. Cornett "got more upset about the situation," Terry said. Terry started to call the police. Cornett snatched the phone out of his brother's hand and threw it down. Terry picked up the phone and again started to dial. Cornett was standing nearby, Terry testified, and said, "he wanted – he will hurt me with the knife." When asked what the specific words were, Terry responded, "He said he was going to kill me with the knife." He felt like Cornett would carry out the threat, Terry told the jury. He showed the jury how Cornett had held the knife in his hand, explaining that Cornett had held it "just like he was ready."

         After making the call, Terry waited out front for the police while Cornett stayed in the back. Terry told Cornett, "I'm coming up front and you sit your butt right here in this chair and wait for the law."

         Terry admitted that the argument did not frighten him enough to try and get away from his brother. He conceded that Cornett did not again try to stop him from calling the police. He testified it was a "possibility" that Cornett said "go ahead and call" the police. He acknowledged that Cornett did not strike him. He agreed that Cornett used the carpet-cutting blade for his trade and always had it with him.

         The brothers waited thirty to thirty-five minutes for the police to arrive. Cornett did not leave the chair. Houston police officer Robert Tarver told the jury that Terry flagged him down when Tarver approached the address where the officer had been dispatched to a domestic disturbance involving a weapon. Tarver found Cornett "seated in a chair at the back of the driveway." Cornett held the carpet-cutting blade in his hand. He was agitated, yelling, "Kill me. I want you to kill me, m----f---- [expletive]. Kill me." Cornett "was perspiring," Tarver testified. "Evidently he was on something. He wasn't thinking rational, acting rational. He was back there yelling." Cornett appeared to be intoxicated, Tarver told the jury, and was waving the knife around. Tarver drew his weapon, pointed it at Cornett, and told him to drop the knife. The officer instructed Cornett to drop the weapon "probably ten times" in two minutes. Cornett finally dropped the knife next to his foot, where it was still within reach. Tarver told him to pick it up and throw it farther away. Cornett tossed the carpet-cutting blade on the other side of a fence by the driveway.

         By the time Cornett had thrown away the knife, other officers had arrived at the scene. The officers told Cornett to get out of the chair and lay on the ground. Cornett refused. The officers approached Cornett. They wrestled Cornett to the ground and handcuffed him.

         Cornett was belligerent and verbally abusive as he was being arrested, officer Vincent Jones testified. When the officers tried to place him in custody, Cornett was combative and tensed up. He refused to put his hands behind his back. He refused to give any personal information about himself. He appeared to be under the influence of alcohol or some type of narcotic. Officer Meridith R. Campbell confirmed that Cornett was combative, uncooperative, and verbally abusive before, during, and after his arrest and transport to jail.

II. FACTUAL-SUFFICIENCY ANALYSIS

                                          A. Standard of Review

         This Court measures the factual sufficiency of the evidence in this case against a hypothetically correct jury charge. Adi v. State, 94 S.W.3d 124, 131 (Tex. App.—Corpus Christi 2002, pet. ref'd); see Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically correct jury charge is 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 was tried." Malik, 953 S.W.2d at 240. A hypothetically correct jury charge would not simply quote from the controlling statute. Gollihar v. State, 46 S.W.3d 243, 254 (Tex. Crim. App. 2001). Its scope is limited by "the statutory elements of the offense . . . as modified by the charging instrument." Fuller v. State, 73 S.W.3d 250, 254 (Tex. Crim. App. 2002) (Keller, P.J., concurring) (quoting Curry v. State, 30 S.W.3d 394, 404 (Tex. Crim. App. 2000)). When a statute lists more than one method of committing an offense, and the indictment alleges some, but not all, of the statutorily listed methods, the State is limited to the methods alleged. Fuller, 73 S.W.3d at 255; Curry, 30 S.W.3d at 404.

         We are constitutionally empowered to review the judgment of the trial court to determine the factual sufficiency of the evidence used to establish the elements of the charged offense. Johnson v. State, 23 S.W.3d 1, 6 (Tex. Crim. App. 2000). In determining the factual sufficiency of the elements of the offense, we view all the evidence neutrally, not through the prism of "the light most favorable to the prosecution." Id. at 6-7 (citing Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996)). We set aside a finding of guilt only if it is so contrary to the overwhelming weight of the evidence as to be clearly wrong and unjust. Johnson, 23 S.W.3d at 7. A clearly wrong and unjust finding of guilt is "manifestly unjust," "shocks the conscience," or "clearly demonstrates bias." Rojas v. State, 986 S.W.2d 241, 247 (Tex. Crim. App. 1998).

         In conducting a factual-sufficiency review, we review the fact finder's weighing of the evidence. Johnson, 23 S.W.3d at 7 (citing Clewis, 922 S.W.2d at 133). We review the evidence that tends to prove a material disputed fact and compare it with evidence that tends to disprove it. Johnson, 23 S.W.3d at 7. We are authorized to disagree with the fact finder's determination. Id. However, we approach a factual-sufficiency review with appropriate deference to avoid substituting our judgment for that of the fact finder. Id. Our evaluation should not intrude substantially on the fact finder's role as the sole judge of the weight and credibility given to witness testimony.  Id.

         We always remain aware of the fact finder's role and unique position, a position we are unable to occupy. Id. at 9. Exercise of our authority to disagree with the fact finder's determination is appropriate only when the record clearly indicates our intervention is necessary to stop manifest injustice. Id. Otherwise, we accord due deference to the fact finder's determinations, particularly those concerning the weight and credibility of the evidence. Id.

         Every fact need not point directly and independently to the accused's guilt. Vanderbilt v. State, 629 S.W.2d 709, 716 (Tex. Crim. App. 1981). A finding of guilt can rest on the combined and cumulative force of all the incriminating circumstances. Id. When an appellant challenges the factual sufficiency of the elements of the offense, we ask whether "a neutral review of all the evidence . . . demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury's determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof." Zuliani v. State, 97 S.W.3d 589, 593-94 (Tex. Crim. App. 2003) (quoting Johnson, 23 S.W.3d at 11); see Swearingen v. State, 101 S.W.3d 89, 97 (Tex. Crim. App. 2003).

         In conducting a factual-sufficiency review in an opinion, we "show our work" when we consider and address the appellant's main argument for urging insufficiency of the evidence. Sims v. State, 99 S.W.3d 600, 603 (Tex. Crim. App. 2003); Johnson, 23 S.W.3d at 9; Manning v. State, 112 S.W.3d 740, 747 (Tex. App.–Houston [14th Dist.] 2003, no pet. h.); see Tex. R. App. P. 47.1. This practice benefits the parties, maintains the integrity of the justice system, and improves appellate practice.  Sims, 99 S.W.3d at 603; Manning, 112 S.W.3d at 747. If we reverse a criminal case for factual insufficiency, we vacate the judgment of conviction. Clewis, 922 S.W.2d at 133-34. We remand for a new trial a criminal case reversed for factual insufficiency, so a second fact finder has the chance to evaluate the evidence. Swearingen, 101 S.W.3d at 97.

B. The Hypothetically Correct Jury Charge

1. The Indictment

         The indictment stated, in pertinent part:

TONY WAYNE CORNETT . . . on or about JUNE 21, 2002, did then and there unlawfully, intentionally and knowingly threaten Terry Cornett with imminent bodily injury by using and exhibiting a deadly weapon, namely, a knife.

2. The Elements of Aggravated Assault as Limited by the Indictment

         One of the ways a person commits assault is by intentionally or knowingly threatening another with imminent bodily injury. Tex. Pen. Code Ann. § 22.01(a)(2) (Vernon Supp. 2004); Ferrel v. State, 55 S.W.3d 586, 589 (Tex. Crim. App. 2001). One of the ways a person commits aggravated assault is by: (1) committing assault as defined in section 22.01; and (2) using or exhibiting a deadly weapon during commission of the assault. Tex. Pen. Code Ann. § 22.02(a) (Vernon Supp. 2004); Green v. State, 831 S.W.2d 89, 93 (Tex. App.–Corpus Christi 1992, no pet.).

         Therefore, the hypothetically correct jury charge for this case would ask the jury if Cornett: (1) intentionally and knowingly (2) threatened (3) Terry Cornett (4) with imminent bodily injury (5) by using and exhibiting a deadly weapon, namely a knife, (6) during the assault. We turn to relevant definitions.

3. Definitions Used in the Aggravated Assault Statute

         Aggravated assault by threat is a "nature of conduct" offense and has no required result. See Guzman v. State, 988 S.W.2d 884, 887 (Tex. App.–Corpus Christi 1999, no pet.). The offense is satisfied if the accused intentionally or knowingly engaged in the prohibited conduct – threatening with imminent bodily injury, aggravated by making the threat with a deadly weapon. See id. Thus, the definitions in the hypothetically correct jury charge in this case concerning the applicable culpable mental state should be limited to the nature of the conduct, rather than result of conduct or circumstances surrounding the conduct.

         A person acts intentionally with respect to the nature of conduct when it is the person's conscious objective or desire to engage in the conduct. Tex. Pen. Code Ann. § 6.03(a) (Vernon 2003). Similarly, a person acts knowingly, or with knowledge, with respect to the nature of conduct when the person is aware of the nature of the conduct. Tex. Pen. Code Ann. § 6.03(b) (Vernon 2003).

         A fact finder may infer the accused's mental state from the acts, words, and conduct of the accused and from the circumstances surrounding the acts in which the accused engaged. See Hernandez v. State, 819 S.W.2d 806, 810 (Tex. Crim. App. 1991); Dillon v. State, 574 S.W.2d 92, 94 (Tex. Crim. App. [Panel Op.] 1978). An accused rarely facilitates conviction by admitting to the requisite intent or knowledge. It seldom is possible to prove by direct evidence what an accused intended or knew at the time of the incident. Thus, the fact finder usually must infer intent and knowledge from circumstantial evidence rather than direct proof. See Gardner v. State, 736 S.W.2d 179, 182 (Tex. App.–Dallas 1987), aff'd, 780 S.W.2d 259 (Tex. Crim. App. 1989); see also Hernandez, 819 S.W.2d at 810; Dillon, 574 S.W.2d at 94-95.

         Further, the fact finder may draw an inference of guilt from the accused's acts, words, and conduct before, during, and after the incident. See Felder v. State, 848 S.W.2d 85, 98 (Tex. Crim. App. 1992) (presentation of false identification during arrest indicated "consciousness of guilt" and awareness of need to conceal identity from law enforcement); see also Butler v. State, 936 S.W.2d 453, 459 (Tex. App.–Houston [14th Dist.] 1996, pet. ref'd) (corrected op.) (giving false identification and engaging in violent outburst after arrest indicated accused's "guilty knowledge" of assault for which he had been arrested).

         "Bodily injury" means physical pain, illness, or any impairment of physical condition. Tex. Pen. Code Ann. § 1.07(a)(8) (Vernon 2003); Nunez v. State, 117 S.W.3d 309, 323 (Tex. App.–Corpus Christi 2003, no pet.). "Deadly weapon" is defined as 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 2003); see Adame v. State, 69 S.W.3d 581, 584 (Tex. Crim. App. 2002) (Meyers, J., concurring) (and cited cases). If an actor uses or intends to use an object in such a way that the object is capable of causing death or serious bodily injury, it is a deadly weapon. Adame, 69 S.W.3d at 584. "Serious bodily injury" is bodily injury that creates a substantial risk of death or causes death, serious permanent disfigurement, or protracted loss or impairment of the function of any "bodily member or organ." Tex. Pen. Code Ann. § 1.07(a)(46) (Vernon 2003); Nunez, 117 S.W.3d at 323.

          In determining whether an object is a "deadly weapon," a jury may consider: (1) the physical proximity between the alleged victim and the object; (2) any threats or words used by the accused; (3) the size and shape of the object; (4) the potential of the object to inflict death or serious injury; and (5) the manner in which the accused allegedly used the object. Id. No one factor is determinative. Id. Each case must be examined on its own facts. Id.

         A knife is not a deadly weapon per se. Limuel v. State, 568 S.W.2d 309, 311 (Tex. Crim. App. [Panel Op.] 1978); Villarreal v. State, 809 S.W.2d 295, 297 (Tex. App.–Corpus Christi 1991, pet. ref'd). To be considered a deadly weapon, the knife must be shown in the manner of its use or intended use to be capable of causing death or serious bodily injury. Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon 2003); Limuel, 568 S.W.2d at 311; Villarreal, 809 S.W.2d at 297.

         Finally, it is well established that threats can be conveyed in more varied ways than merely verbally. McGowan v. State, 664 S.W.2d 355, 357 (Tex. Crim. App. 1984). An actor may communicate a threat by action or conduct as well as by words.  Id.

         Cornett's brief challenges the sufficiency of the evidence on factual-sufficiency grounds only. With a hypothetically correct jury charge in mind that reflects the correct instructions and elements of the offense as modified by the indictment, we turn to our factual-sufficiency analysis.

C. Measuring the Evidence against the Hypothetically Correct Jury Charge

         In our factual-sufficiency analysis, we view all the evidence neutrally, favoring neither the prosecution nor Cornett. See Johnson, 23 S.W.3d at 6-7 (citing Clewis, 922 S.W.2d at 129). Cornett did not testify at trial. On appeal, he points to inconsistencies in his brother's testimony about what Cornett actually said to Terry when he brandished the carpet-cutting blade. Specifically, Cornett contends Terry first testified that Cornett threatened that he could or would hurt him but later testified that Cornett said he was going to kill him. Cornett points to Terry's testimony that arguments between the two brothers were virtually a daily occurrence. He references Terry's testimony that the argument did not place him in such fear that he tried to avoid Cornett or get away from him. He emphasizes he ultimately permitted his brother to call the police and remained seated, away from Terry, until they arrived.

         Nonetheless, the jury also heard that Terry believed at the time that Cornett would carry out his threat. Terry testified the knife was sharp enough to rip up carpet and could do some damage to someone. The jury saw Terry demonstrate how Cornett held the knife and heard Terry explain "just like he was ready." The jury also heard that Terry thought his brother "was acting kind of crazy." Finally, the jury heard the responding police officers describe Cornett as still flourishing the carpet-cutting blade when they arrived. The officers uniformly described Cornett as intoxicated, belligerent, combative, and verbally abusive.

         These conflicts in the testimony are not as weighty as Cornett's brief suggests. In sum, the jury heard that Cornett, intoxicated and angry, exhibited a carpet-cutting knife while threatening to seriously injure or kill his brother with it. It heard that Terry felt threatened. The jury could have concluded that the knife was capable of inflicting serious bodily injury or death in the manner Cornett used it. See Tex. Pen. Code Ann. § 1.07(a)(17)(B) (Vernon 2003); see also Villarreal, 809 S.W.2d at 297. The jury also could have inferred Cornett's "consciousness of guilt" from his attempt to conceal his identity from the arresting officers and his violent outbursts before, during, and after his arrest. See Felder, 848 S.W.2d at 98; see also Butler, 936 S.W.2d at 459. Finally, in addition to Cornett's verbal threats, the jury also could have concluded that Cornett acted threateningly toward his brother in his nonverbal behavior. See McGowan, 664 S.W.2d at 357; see also Green, 831 S.W.2d at 93.         Faced with a record of historical facts that supports conflicting inferences, we presume that the trier of fact resolved any conflicts in favor of the prosecution. See Jackson, 443 U.S. at 326. The jury chose to resolve the evidence in favor of the State. We defer to that resolution. See id. Proof of Cornett's guilt is not so obviously weak as to undermine confidence in the jury's determination, nor is the proof of his guilt greatly outweighed by contrary proof. See Zuliani, 97 S.W.3d at 593-94. Viewing the evidence neutrally, we hold the evidence factually sufficient to support the conviction. See Johnson, 23 S.W.3d at 6. We overrule Cornett's first issue.

III. JURY ARGUMENT

         In his second issue, Cornett complains of improper jury argument at the end of the culpability phase of the trial. He contends that the prosecutor voiced his personal opinion, vouched for the credibility of the State's witnesses, commented indirectly on Cornett's failure to testify, and suggested that the jury not follow the jury charge. Cornett argues that the cumulative effect of the improper jury argument constitutes reversible error without the necessity of an objection at trial. He concludes that the argument was so prejudicial that instructions would not have cured the harm even had he objected. The State counters that Cornett was required to but did not preserve error. We agree with the State.

         An accused's "'right' not to be subjected to incurable erroneous jury arguments is one of those rights that is forfeited by a failure to insist upon it." Cockrell v. State, 933 S.W.2d 73, 89 (Tex. Crim. App. 1996). We hold that Cornett waived his right to complain on appeal by not objecting at trial to the prosecutor's arguments. See Tex. R. App. P. 33.1; see also Simpson v. State, 119 S.W.3d 262, 268 (Tex. Crim. App. 2003) (finding waiver of any error in prosecutor's statement of personal opinion in jury argument); Mathis v. State, 67 S.W.3d 918, 926-27 (Tex. Crim. App. 2002) (finding waiver of any error in prosecutor's description of accused as "despicable piece of human trash"); Oliva v. State, 942 S.W.2d 727, 735 (Tex. App.–Houston [14th Dist.] 1997), pet. dism'd, 991 S.W.2d 803 (Tex. Crim. App. 1998) (emphasizing that counsel's failure to object to prosecutor's comment on accused's failure to testify prevented appellant from asserting error on appeal).

         Further, under the harm analysis required by rule 44.2(b) of the rules of appellate procedure, we disregard any error unless it affects the appellant's substantial rights. See Tex. R. App. P. 44.2(b). A prosecutor's improper jury argument affects an accused's substantial rights when the error had a substantial, injurious effect or influence on the jury's verdict. King v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997); Gonzalez v. State, 115 S.W.3d 278, 285 (Tex. App.–Corpus Christi 2003, pet. ref'd). We find that any error in the prosecutor's arguments could have had no substantial, injurious effect or influence on the jury's verdict in light of the compelling evidence in this case. See Cockrell, 933 S.W.2d at 89. We hold that any error in the prosecutor's arguments did not affect Cornett's substantial rights and was harmless. See Tex. R. App. P. 44.2(b); see also Cockrell, 933 S.W.2d at 89 (applying former rule 81(b)(2) of rules of appellate procedure). We overrule Cornett's second issue.

IV. CONCLUSION

         We affirm the judgment of the trial court.

                                                                        ERRLINDA CASTILLO

                                                                        Justice

Do Not Publish.

Tex. R. App. P. 47.2(b).

Memorandum Opinion delivered and filed

this 15th day of April, 2004.