Tina Marie Baker v. State ( 2010 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00079-CR
TINA MARIE BAKER APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
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MEMORANDUM OPINION1
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Appellant Tina Marie Baker appeals her conviction for burglary of a
habitation. In two points, she argues that the evidence is insufficient to support
the jury‘s verdict and that the trial court erred by failing to define an element of
the offense in the jury charge. We affirm.
1
See Tex. R. App. P. 47.4.
Background Facts
The State’s version of the facts
On January 29, 2009, Zach Oakley, a high school student, lived at a house
on Bentwater Parkway in Granbury. That night, Zach and his mother, Dana
Baker, were inside the house‘s open attached garage while they were packing a
moving truck. Zach‘s stepdad and Dana‘s husband, Anthony Baker, was
sleeping in his room. Zach‘s cousin, Kayla, was packing boxes in the kitchen.
At about midnight, appellant, who is Anthony‘s ex-wife, arrived at the
house, threw eggs at the moving truck, yelled an obscenity at Dana, and ran into
the garage. Appellant grabbed Dana‘s hair and pulled her to the ground, and
Zach ran into the house, called 911, and woke up Anthony. 2 When Zach came
back to the garage, he saw appellant and Dana fighting on the ground while
Kayla and Anthony were trying to pull them apart.3
Anthony eventually pulled appellant off of Dana, and when Zach told
appellant that the police were coming, appellant quickly left in a car with Bryan
Anderson, who had come to the house with her. Because Zach had given the
dispatcher the car‘s license plate number, the police found appellant and Bryan.
Appellant, who smelled like alcohol, admitted that she had thrown eggs at the
moving truck. She also initially told an officer that she had been assaulted by
2
The State introduced a recording of the 911 call.
3
Dana said that there was ―hair all over the garage,‖ that she was ―hurt
badly,‖ and that she was sore with bruises for a couple of days after the fight.
2
three females but later told the officer that she was assaulted by two females and
a male. When another officer searched the car that appellant and Anderson
were in, he found an open alcoholic drink and unopened alcoholic drinks.
Anthony, Dana, Zach, and Kayla gave statements to a Hood County Sheriff‘s
Department sergeant, and the sergeant directed appellant‘s arrest.
Appellant’s version of the facts
On January 29, 2009, appellant and Bryan became drunk. Appellant
bought some eggs, threw them at Anthony‘s motorcycle shop, and then went with
Bryan to the Bentwater Parkway house. When they arrived there, appellant
became upset and threw eggs at the moving truck. She then heard Dana yell,
―Bring it on, bitch,‖ and Dana and appellant moved toward each other.4 Appellant
met Dana outside the garage, at which time Kayla pushed appellant from behind.
Appellant held Dana‘s hair to defend herself while Dana, Kayla, and Anthony
kicked and punched her. Appellant and Bryan eventually left and were stopped
and arrested while they were on their way to the sheriff‘s department to report
what had happened.5
4
Dana denied making that statement.
5
Bryan testified that he stayed in his car while appellant threw eggs at the
truck, but then he heard appellant screaming, saw some commotion, and found
appellant on her back in the garage while she was being beaten by Dana and
Kayla. Bryan conceded that he did not personally know who started the fight
between Dana and appellant.
3
Procedural history
A grand jury indicted appellant for burglary of a habitation. Appellant pled
not guilty, but a jury found her guilty. After hearing evidence on punishment, the
jury assessed eight years‘ confinement and a $6,000 fine but recommended
suspension of that sentence so that appellant could be placed on community
supervision. The trial court signed a judgment incorporating the jury‘s
punishment recommendation, and appellant filed notice of this appeal.
Evidentiary Sufficiency
In her first point, appellant argues that the evidence is insufficient to show
that she committed burglary.
Standard of review and applicable law
In our review of the sufficiency of the evidence to support a conviction, we
view all of the evidence in the light most favorable to the prosecution to
determine whether any rational trier of fact could have found the essential
elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.
307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778
(Tex. Crim. App. 2007). This standard gives full play to the responsibility of the
trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to
draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.
at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
4
The trier of fact is the sole judge of the weight and credibility of the
evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.
State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075
(2009). Thus, when performing an evidentiary sufficiency review, we may not re-
evaluate the weight and credibility of the evidence and substitute our judgment
for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.
App. 2007). Instead, we Adetermine whether the necessary inferences are
reasonable based upon the combined and cumulative force of all the evidence
when viewed in the light most favorable to the verdict.@ Hooper v. State, 214
S.W.3d 9, 16–17 (Tex. Crim. App. 2007).
Paragraph two of the indictment alleged that appellant ―did then and there
intentionally or knowingly, without the effective consent of Dana Baker, the owner
thereof, enter a habitation and did attempt to commit or commit assault.‖
See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).6 The penal code states
that a ―habitation‖ includes ―each separately secured or occupied portion of the
structure‖ and ―each structure appurtenant to or connected with the structure.‖
Id. § 30.01(1) (Vernon 2003); see White v. State, 630 S.W.2d 340, 342 (Tex.
App.—Houston [1st Dist.] 1982, no pet.) (holding that a house‘s attached garage
6
Paragraph one of the indictment alleged an alternative theory of burglary;
it stated that appellant ―did then and there intentionally, without the effective
consent of Dana Baker, . . . enter a habitation with intent to commit assault.‖
See Tex. Penal Code Ann. § 30.02(a)(1). However, the jury charge instructed
the jury only about paragraph two.
5
was a habitation under the penal code‘s definition). An ―owner‖ includes
someone who has possession of property ―or a greater right to possession of the
property than the actor.‖ Tex. Penal Code Ann. § 1.07(a)(35)(A) (Vernon Supp.
2010); Ronk v. State, 250 S.W.3d 467, 470 (Tex. App.—Waco 2008, pet. ref‘d).
Analysis
Appellant argues that the State failed to prove that (1) she intended to
assault Dana inside a habitation, (2) the garage was not open to the public, and
(3) appellant went into the garage voluntarily (she asserts that she was pushed
into it). The facts recited above presented the jury with conflicting theories about
how appellant entered the garage and whether she assaulted Dana or merely
defended herself. But in our evidentiary sufficiency review, we must presume
that the jury resolved any conflicting inferences in favor of the prosecution and
defer to that resolution.7 Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton,
235 S.W.3d at 778.
If the jury believed the witnesses called by the State and disbelieved
appellant‘s and Bryan‘s testimony, it could have rationally determined that
appellant ran into the open garage, grabbed Dana‘s hair, and pulled her to the
ground, causing her pain. This evidence shows that appellant attempted to
commit or committed assault in the garage. See Tex. Penal Code Ann.
7
The jury had reasons to disbelieve appellant‘s testimony because she
admitted that she was drunk on the night in question and that she had initiated
the dispute that night by throwing eggs at the motorcycle shop and moving truck.
6
§ 22.01(a)(1) (Vernon Supp. 2010) (stating that a person can commit assault by
intentionally, knowingly, or recklessly causing bodily injury to another);
id. § 1.07(a)(8) (stating that ―bodily injury‖ includes ―physical pain‖); see also
Thomas v. State, 303 S.W.3d 331, 333–34 (Tex. App.—El Paso 2009, no pet.)
(holding that the evidence was sufficient to prove assault when a wife felt pain
after her husband pushed her, slapped her back, and caused her to stumble).
Appellant also notes that the garage was open and ―[a]nyone could freely
walk up and into‖ it. But appellant has not cited authority showing that the
garage‘s door being open changed its status as a habitation. Cf. White, 630
S.W.2d at 341–42 (holding that a garage that did not have a front door was a
habitation even though it was not enclosed); see also Tennyson v. State, No. 11-
92-00107-CR, 1993 WL 13141619, at *2 (Tex. App.—Eastland June 24, 1993, no
pet.) (not designated for publication) (holding that an attached carport, which was
open on three sides, qualified as a habitation). Also, even though appellant lived
at the Bentwater Parkway house before she divorced Anthony, Dana and
Anthony testified that appellant did not have permission to be in the garage, and
Anthony said that he had told appellant not to come there. Appellant admitted
that she knew that Dana did not want her to be there. Thus, the jury could have
rationally found that despite the garage‘s door being opened, it qualified as a
habitation that appellant did not have consent to enter.
7
For all of these reasons, we hold that the evidence is sufficient to support
appellant‘s conviction. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,
235 S.W.3d at 778. We overrule appellant‘s first point.
Jury Charge Error
In her second point, appellant contends that the trial court erred by failing
to define ―assault‖ in the jury charge when the jury had to find that appellant
attempted to commit or committed assault to convict her of burglary.
Standard of review and applicable law
A person commits assault when the person intentionally, knowingly, or
recklessly causes bodily injury to another; intentionally or knowingly threatens
another with imminent bodily injury; or intentionally or knowingly causes physical
contact with another when the person knows or should reasonably believe that
the other will regard the contact as offensive or provocative. 8 Tex. Penal Code
Ann. § 22.01(a). Appellant did not object to the omission of an assault definition
at trial.
Appellate review of error in a jury charge involves a two-step process.
Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v.
State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must
determine whether error occurred; if it did, we must then evaluate whether
8
Courts have held that the variations of assault comprise different offenses.
See Dolkart v. State, 197 S.W.3d 887, 893 (Tex. App.—Dallas 2006, pet. ref‘d).
8
sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at
731–32.
If there is error in the court‘s charge but the appellant did not preserve it at
trial, we must decide whether the error was so egregious and created such harm
that the appellant did not have a fair and impartial trial—in short, that Aegregious
harm@ has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.
1985) (op. on reh=g);9 see Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006);
Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Hutch v. State, 922
S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm is the type and level of
harm that affects the very basis of the case, deprives the defendant of a valuable
right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264 & n.15;
Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex. Crim. App. 2006); Almanza, 686
S.W.2d at 172.
In making an egregious harm determination, Athe actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the argument of
counsel and any other relevant information revealed by the record of the trial as a
whole.@ Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at 172–
9
Appellant argues that the trial court‘s failure to define assault was a
―fundamental error.‖ Courts have indicated that a ―fundamental error‖ is one that
has caused egregious harm under Almanza. See Jefferson v. State, 99 S.W.3d
790, 793 (Tex. App.—Eastland 2003, pet. ref‘d); Thomas v. State, 849 S.W.2d
405, 406–07 (Tex. App.—Fort Worth 1993, no pet.).
9
74. The purpose of this review is to illuminate the actual, not just theoretical,
harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm is a difficult
standard to prove and must be determined on a case-by-case basis. Ellison v.
State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch, 922 S.W.2d at 171
A trial court must give a jury ―a written charge distinctly setting forth the law
applicable to the case.‖ Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007).
Thus, the trial court must instruct the jury on ―each element of the offense or
offenses charged and include in its charge each statutory definition that affects
the meaning of an element of the offense. If a phrase, term, or word is statutorily
defined, the trial court must submit the statutory definition to the jury.‖ McIlroy v.
State, 188 S.W.3d 789, 797 (Tex. App.—Fort Worth 2006, no pet.) (citation
omitted); see Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986);
Harkins v. State, 268 S.W.3d 740, 742–43 (Tex. App.—Fort Worth 2008, pet.
ref‘d).
Analysis
The trial court did not define assault in its jury charge although that term is
statutorily defined. See Tex. Penal Code Ann. § 22.01(a). Therefore, the State
concedes, and we hold, that the trial court erred by not defining assault.
See McIlroy, 188 S.W.3d at 797; see also Lindsay v. State, 102 S.W.3d 223, 230
(Tex. App.—Houston [14th Dist.] 2003, pet. ref‘d) (holding that a trial court erred
by not defining ―criminal responsibility‖ when that term was statutorily defined).
10
―An erroneous or incomplete jury charge, however, does not result in
automatic reversal of a conviction.‖ Abdnor, 871 S.W.2d at 731. Appellant
contends that she suffered egregious harm because the jury was ―left with
nothing but an inference of what constitutes an ‗assault.‘‖ But although the jury
did not receive the definition of assault in the jury charge, the State provided the
definition during voir dire, in which the following colloquy occurred:
[THE STATE]: . . . Can you think of a law, Ms. Burns, that
would -- that we have about protecting your body? What are you
protected from by the law?
VENIREPERSON: Assault.
[THE STATE]: Okay. Assault. Getting hit. And we‘re going
to talk more about assault. . . . So we consider that very important
that -- that your body is protected from unwanted intrusions by other
people, I guess, just like your home is protected. . . .
....
[THE STATE]: Okay. I want to get you comfortable with this
idea, because it is rather unusual for most people.
And what is an assault? And this is important, too, to know
this, because, again, what you see on TV and what you hear might
be two different things.
Mr. Frederick, does it make sense to you that the definition,
the legal definition of assault is intentionally o[r] knowingly causing
bodily injury to someone? Does that make sense?
VENIREPERSON: Yeah.
[THE STATE]: That pretty much what you thought it was
going to be?
VENIREPERSON: Uh-huh.
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[THE STATE]: Did you know that the Texas definition of
bodily injury is physical pain, something that causes physical pain?
Have you ever heard that?
VENIREPERSON: No I didn‘t, no.
[THE STATE]: What did you have in mind as far as bodily
injury goes? What did you think that was? Bleeding?
VENIREPERSON: Marks, bruising.
[THE STATE]: Okay. And that‘s one way to commit bodily
injury. But the definition of bodily injury in Texas says something
that causes pain. . . .
....
[THE STATE]: . . . If the person who‘s been assaulted says,
―That caused me pain,‖ then that is enough for assault.
....
[THE STATE]: . . . So in this case we’re talking about
intentionally or knowingly doing something that causes physical
pain, okay, intentionally or knowingly doing something that causes
physical pain. [Emphasis added.]
We conclude that the jury‘s receipt of the correct definition of assault during voir
dire mitigated possible harm of that term being undefined in the jury charge.
See Fulcher v. State, 274 S.W.3d 713, 717 (Tex. App.—San Antonio 2008, pet.
ref‘d) (explaining that in ―considering whether jury charge error caused egregious
harm, we consider . . . counsels‘ statements during voir dire and at trial‖);
Cormier v. State, 955 S.W.2d 161, 163–64 (Tex. App.—Austin 1997, no pet.)
(holding that there was no egregious harm from the trial court‘s failure to define a
term in a punishment-phase jury charge because there was ―no reason to believe
that the jury did not remember the earlier definition‖ that it had been given);
12
Jones v. State, 850 S.W.2d 236, 240–41 (Tex. App.—Fort Worth 1993, no pet.)
(concluding that there was no egregious harm from a jury charge that gave an
incomplete instruction about parole law when the State correctly explained the
application of parole law to the jury in its final argument); see also Mouton v.
State, 892 S.W.2d 234, 237 (Tex. App.—Beaumont 1995, pet. ref‘d) (holding that
there was no egregious harm even though a jury charge on aggravated robbery,
which required theft to be committed as an underlying offense, did not define
theft).
Also, the ―state of the evidence, including the contested issues and the
weight of the probative evidence,‖ shows that the trial court‘s omission of an
assault definition was not egregiously harmful. See Allen, 253 S.W.3d at 264.
The evidence prompted the jury to believe either the State‘s factual theory or
appellant‘s factual theory, and it therefore created a conflict, but not an
ambiguity, on whether an assault occurred. The jury could have decided either
that (1) appellant obviously committed assault because she ran into the garage,
pulled Dana by her hair to the ground, and caused her pain (including bruising
and soreness), or (2) appellant obviously did not commit assault because after
appellant threw eggs at the moving truck, Dana, Kayla, and Anthony beat
appellant up. Thus, the jury could have determined that appellant did not
intentionally, knowingly, or recklessly cause bodily injury to Dana (and therefore
did not assault her) only if it believed appellant‘s version of the facts; the jury did
13
not have any basis to believe the testimony of the State‘s witnesses and still
conclude that the elements of assault did not occur.
In other words, there is no act that appellant allegedly committed in this
case that straddles the line on the penal code‘s definition of assault; she either
committed assault (according to the State‘s witnesses) or did not commit assault
(according to her own witnesses). By returning a guilty verdict, the jury indicated
its choice to believe the State‘s witnesses; the jury therefore would have almost
certainly convicted appellant even if the definition of assault had been provided.
Stated another way, the trial court‘s failure to define assault did not vitally affect
appellant‘s defensive theories that she had consent to enter the garage or that
she did not initiate the physical contact with Dana. See id. at 264 & n.15.
For these reasons, we hold that the trial court‘s error of not defining assault
in the jury charge did not cause egregious harm. See Almanza, 686 S.W.2d at
171–72. We overrule appellant‘s second point.
Conclusion
Having overruled both of appellant‘s points, we affirm the trial court‘s
judgment.
TERRIE LIVINGSTON
CHIEF JUSTICE
PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: November 24, 2010
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