Victor Omoleme v. the State of Texas ( 2021 )

Affirmed and Memorandum Opinion filed October 26, 2021.
In The
Fourteenth Court of Appeals
NO. 14-20-00226-CR
VICTOR OMOLEME, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 230th District Court
Harris County, Texas
Trial Court Cause No. 1581723
MEMORANDUM OPINION
Appellant appeals his conviction for aggravated assault with a deadly weapon.
See Tex. Penal Code § 22.02(a)(2). In a single issue, appellant asserts he suffered
egregious harm when the jury was not instructed on the use of non-deadly force to
protect oneself. We affirm.
BACKGROUND
The complainant and appellant are rideshare drivers working for Uber. While
waiting in the airport rideshare parking lot for fares appellant backed into the
complainant’s car and damaged the front bumper. The complainant obtained
appellant’s name, contact information, and insurance information. Appellant’s
insurance company informed the complainant that the policy number was incorrect.
The complainant texted appellant after appellant refused to return the complainant’s
phone calls. The complainant told appellant that the insurance policy number was
“fake,” and that the complainant planned to report the accident to Uber and Lyft.
Appellant responded via text that he had not given false information and that he
preferred that the complainant talk directly with him, not his insurance company.
Appellant’s response used profane language and a racial slur, and accused the
complainant of harassing him.
The complainant reported the accident and damage to his car to Uber. Uber
immediately suspended the complainant’s account until the damage to the car was
repaired. Uber also suspended appellant’s account until his car was repaired. After
having his car repaired the complainant sent pictures of the repaired car to Uber who
reinstated his account.
The first day after the complainant’s account was reinstated, he returned to
the airport parking lot to wait for a fare. While he was waiting the complainant and
some friends were eating. While eating the complainant heard someone call his
name. The complainant turned to see who was calling him, and appellant
immediately swung a large flashlight toward the complainant’s head, hitting the
complainant and rendering him briefly unconscious. The complainant denied
attacking appellant in any way, testifying that he had no chance because appellant
immediately hit him in the head. Despite knocking the complainant unconscious,
appellant continued to beat the complainant. A bystander eventually pulled appellant
off the complainant.
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The complainant was transported via ambulance to the hospital where he
remained for two days. The complainant was diagnosed with a concussion at the
time of the injury. At the time of trial the complainant still felt occasionally dizzy,
got headaches, and experienced difficulty with balance and memory. The
complainant lost most of the sight in his left eye, testifying that, by the time of trial,
he had lost 95 percent of his sight in that eye.
Bilal Ahmed, another Uber driver, testified that he heard someone call the
complainant’s name then saw appellant hit the complainant in the head with the
flashlight. Ahmed did not see any altercation between appellant and the complainant
before appellant hit the complainant in the head. After the complainant was hit in
the head with the flashlight he was incapable of fighting. The complainant was trying
to get away from appellant. After the first blow appellant continued to beat the
complainant with the flashlight. Ahmed never saw the complainant hit appellant; the
complainant was trying to get away from appellant.
When Officer Derrick Lathan of the Houston Police Department arrived on
the scene, he saw the complainant on the ground with a bandage wrapped around his
head and blood coming out of his head. Paramedics had treated the complainant and
told Lathan the complainant had a possible concussion. Lathan testified that
appellant still had the flashlight in his hand. Lathan removed the flashlight from
appellant’s hand and placed appellant in handcuffs. Lathan did so because the
dispatch he received reported that a man had been assaulted with a flashlight.
Lathan’s body camera video showed that appellant told Lathan that
appellant’s glasses had been knocked off his face. The video also showed the
complainant sitting on the ground with a bandage wrapped around his head.
Houston Police Officer Christopher Schultz also responded to the scene.
Schultz testified that the complainant’s injuries appeared to be substantial because
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of the amount of blood that was on his shirt. Schultz collected the flashlight from the
scene and placed it in an evidence bag. Schultz testified that the flashlight could be
used as a deadly weapon.
Appellant testified, telling a different version of events. With regard to the
original accident appellant testified that the complainant’s bumper was not damaged;
only the license plate was damaged. Appellant offered to pay for the damage without
exchanging insurance information. Appellant testified that the complainant initially
agreed to accept appellant’s payment but returned asking for insurance and contact
information in case appellant did not pay. Appellant wanted to avoid reporting the
accident to Uber because it would result in suspension of his Uber account while
repairs were being made.
As to the day of the offense, appellant testified that he saw the complainant in
the airport parking lot and tried to give him cash to pay for his repairs. Appellant
was also carrying the flashlight because it was dark. Appellant testified that when
the complainant refused his offer of cash, appellant pulled on the complainant in an
attempt to get the complainant to take the money. At that time, according to
appellant, the complainant slapped appellant in the face causing appellant’s glasses
to fall off. After the complainant slapped appellant, his flashlight and wallet flew
from his hands. Appellant testified that the two men began to fight and that the
complainant began to choke appellant. Appellant bit the complainant’s thumb to
break the complainant’s chokehold on him. The complainant kicked appellant’s shin
causing appellant to fall to the ground. While on the ground appellant picked up the
flashlight and started swinging at the complainant until he connected with the
complainant’s head. Appellant testified that if he did not “do something, [the
complainant]’s probably going to come back again.” That is when appellant stood
up and swung at the complainant and they both ended up on the ground. At that time
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other people pulled appellant off of the complainant.
Appellant testified that at the time he used the flashlight he was in a fight for
his life. Appellant testified he would not have used the flashlight if he did not think
it was immediately necessary. Appellant denied hitting the complainant with no
provocation, and asserted that the bystanders who testified otherwise were lying.
In rebuttal, the State called Syed Zaidi, another Uber driver who witnessed
the incident. Zaidi testified that someone was cursing and calling the complainant’s
name, then suddenly hit the complainant with a large flashlight. Zaidi was standing
about two feet away from the complainant at the time appellant hit him. There was
no argument before appellant hit the complainant; it just “suddenly happen[ed].”
Zaidi did not see the complainant slap appellant’s face or place him in a chokehold.
The jury charge contained an instruction on the use of deadly force to protect
oneself. The jury found appellant guilty of aggravated assault as charged in the
indictment. By finding appellant guilty as charged the jury rejected appellant’s self-
defense claim. The trial court assessed appellant’s sentence at three years’
confinement pursuant to an agreement between appellant and the State.
In a single issue on appeal appellant asserts he suffered egregious harm when
the jury was not instructed on the use of non-deadly force to protect oneself.
ANALYSIS
I. Standard of Review and Applicable Law
In a criminal case, we review complaints of jury charge error in two steps.
Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). First, we determine
whether error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim.
App. 2005). Second, we review the record to determine whether sufficient harm was
caused by the error to require reversal of the conviction. Id.5
The degree of harm necessary for reversal depends on whether the appellant
preserved error by objecting to the charge. Almanza v. State, 686 S.W.2d 157, 171
(Tex. Crim. App. 1984). When charge error is not preserved, as in this case, reversal
is not required unless the resulting harm is egregious. Id.; see also Tex. Code Crim.
Proc. art. 36.19.
Charge error is egregiously harmful when it affects the very basis of the case,
deprives the defendant of a valuable right, or vitally affects a defensive theory.
Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). That is, the error
must have been so harmful that the defendant was effectively denied a fair and
impartial trial. Almanza, 686 S.W.2d at 172. Egregious harm is a difficult standard
to prove and must be determined on a case-by-case basis. Hutch v. State, 922 S.W.2d
166, 171 (Tex. Crim. App. 1996). Under Almanza, the record must show that the
charge error caused the defendant actual, rather than merely theoretical, harm. Ngo,
175 S.W.3d at 750. Neither party has the burden to show harm. Reeves v. State, 420
S.W.3d 812, 816 (Tex. Crim. App. 2013).
The trial court’s charge must fully instruct the jury on the law applicable to
the case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d
125, 127 (Tex. Crim. App. 2004); see Tex. Code Crim. Proc. art. 36.14. Because the
charge is the instrument by which the jury convicts, it must contain an accurate
statement of the law and must set out all the essential elements of the offense.
Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). The application
paragraph applies the relevant law, the definitions found in the abstract portion of
the charge, and general legal principles to the particular facts of the case. Vasquez v.
State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). Because the application
paragraph specifies “the factual circumstances under which the jury should convict
or acquit, it is the ‘heart and soul’ of the jury charge.” Id. at 367.
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II. The trial court did not err in failing to include an instruction on the use
of non-deadly force.
The application paragraph of the jury charge contained the following
instruction on self-defense:
If you find from the evidence beyond a reasonable doubt that at the time
and place in question the defendant did not reasonably believe that he
was in danger of death or serious bodily injury, or that the defendant,
under the circumstances as viewed by him from his standpoint at the
time, did not reasonably believe that the degree of force actually used
by him was immediately necessary to protect himself against [the
complainant]’s use or attempted use of unlawful deadly force, then you
should find against the defendant on the issue of self-defense.
A defendant is entitled to an instruction on a defensive issue if the issue is
raised by the evidence, whether that evidence is strong or weak, unimpeached or
contradicted, and regardless of what the trial court may think about the credibility of
the defense. Miller v. State, 815 S.W.2d 582, 585 (Tex. Crim. App. 1991). On the
other hand, if the evidence, viewed in the light most favorable to the defendant, does
not establish a defensive issue, the defendant is not entitled to an instruction on the
issue. Id. Therefore, we must first decide whether there was any evidence that the
force used by appellant was not deadly force.
The instant case is governed by Ferrel v. State, where the Court of Criminal
Appeals held that for a defendant to be entitled to a non-deadly force instruction
under section 9.31(a) of the Code of Criminal Procedure, there must have been some
evidence that the instrument used—in Ferrel, a full bottle of beer; in this case a
flashlight—was not capable of causing death or serious bodily injury in the manner
of its use or intended use. 55 S.W.3d 586, 591–92 (Tex. Crim. App. 2001). Under
those facts, the Ferrel court held that because the beer bottle indisputably caused
serious bodily injury to the complainant, the defendant by definition used deadly
force. Id. at 592.
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In this case the trial court instructed the jury on self-defense under section
9.32 of the Penal Code. Under this section, a person is justified in using deadly force
against another if he would be justified in using force under Section 9.31, if a
reasonable person in the actor’s situation would not have retreated, and to the degree
he reasonably believes the deadly force is immediately necessary to protect himself
against the other’s use or attempted use of unlawful deadly force. Tex. Penal Code
§ 9.32. Section 9.31(a) of the Penal Code provides that a person is justified in using
non-deadly force against another when and to the degree he reasonably believes the
force is immediately necessary to protect himself against the other’s use or attempted
use of unlawful force. Tex. Penal Code § 9.31(a).
Deadly force is “force that is intended or known by the actor to cause, or in
the manner of its use or intended use is capable of causing, death or serious bodily
injury.” Tex. Penal Code § 9.01. For there to be evidence that appellant did not use
deadly force, there must have been evidence that the flashlight was not capable of
causing death or serious bodily injury in the manner of its use or intended use. See
Ferrel, 55 S.W.3d at 591–92.
Under the standard promulgated by the Texas Court of Criminal Appeals, the
reviewing court looks at the end result of the act, and if facts are such that the
complainant suffers serious injury, then, by definition, the force used was deadly.
Ferrel, 55 S.W.3d at 592; Denman v. State, 193 S.W.3d 129, 134–35 (Tex. App.—
Houston [1st Dist.] 2006, pet. ref’d). Therefore, we examine the evidence to
determine whether the complainant indisputably suffered “serious bodily injury.”
Ferrel, 55 S.W.3d at 592. If the evidence is undisputed that the complainant suffered
serious bodily injury, appellant was not entitled to a non-deadly force instruction.
See Denman, 193 S.W.3d at 135.
Appellant asserts there was some evidence that the flashlight was not capable
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of causing death or serious bodily injury in the manner in which it was used by
appellant. Appellant argues that the lack of medical records detailing the extent of
the injuries leaves room for doubt that the flashlight was capable of causing death or
serious bodily injury in the manner of its use.
“Serious bodily injury” means “bodily injury that creates a substantial risk of
death or that causes death, serious permanent disfigurement, or protracted loss or
impairment of the function of any bodily member or organ.” Tex. Penal Code §
1.07(a)(46). Serious bodily injury may be established without a physician’s
testimony or records when the injury and its effects are obvious. Blea v. State, 483
S.W.3d 29, 35 (Tex. Crim. App. 2016).
In this case, the evidence supports the conclusion that the flashlight
indisputably caused serious bodily injury. The complainant testified that he spent
two days in the hospital recovering from his injuries, which included a concussion,
and that months after the incident he still experienced dizziness, headaches, loss of
balance, and significant loss of vision. Appellant affirmatively testified that he was
in fear for his life. There was conflicting testimony as to who was the aggressor and
whether the complainant engaged with appellant before appellant hit him in the head
with the flashlight, but the testimony was not disputed that when appellant hit the
complainant with the flashlight the result was serious bodily injury. Therefore, we
hold that because it is clear that the complainant suffered “serious bodily injury” as
contemplated by the statutory language, appellant necessarily used deadly force and
was not entitled to an application paragraph instruction as to non-deadly force. See
English v. State, 171 S.W.3d 625, 628 (Tex. App.—Houston [14th Dist.] 2005, no
pet.) (blow from baseball bat causing pain, a large gash requiring seven stitches, a
scar, bruising, swelling, and a concussion caused serious bodily injury); Powell v.
State, 939 S.W.2d 713, 718 (Tex. App.—El Paso 1997, no pet.) (concussion, which
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caused memory loss considered to be serious bodily injury).
Accordingly, appellant was not entitled to an instruction on the use of non-
deadly force, and we overrule his sole issue. See Denman, 193 S.W.3d at 135.
CONCLUSION
Having overruled appellant’s sole issue on appeal we affirm the trial court’s
judgment.
/s/ Jerry Zimmerer
Justice
Panel consists of Justices Bourliot, Zimmerer, and Spain.
Do Not Publish — Tex. R. App. P. 47.2(b).
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