Raephil Johnson v. State ( 2014 )

Opinion issued March 13, 2014
In The
Court of Appeals
For The
First District of Texas
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NO. 01-13-00104-CR
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RAEPHIL JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 183rd District Court
Harris County, Texas
Trial Court Case No. 1320164
MEMORANDUM OPINION
A jury found Appellant guilty of the offense of aggravated assault.1 The
trial court assessed his punishment at 20 years in prison. In one issue, Appellant
complains of jury-charge error.
1
See TEX. PENAL CODE ANN. § 22.02(a)(2) (Vernon 2011).
We affirm.
Background
On August 30, 2011, Bryan Johnson was walking through his apartment
complex when he noticed that his mother’s boyfriend, Kenyatta, was engaged in an
argument with a man named Shawn, who also lived in the complex. Shawn was on
the second-floor balcony in front of the apartment where he lived. Appellant was
also on the balcony with Shawn. Kenyatta was standing below on the ground.
Johnson stopped and inquired why Shawn and Kenyatta were arguing.
Appellant stared at Johnson but did not answer him. Evidence would later show
that the two men were arguing about whether Shawn owed Kenyatta money for
PCP, an illegal drug.
Johnson’s mother, Phyllis, who lived across the street, was walking to
Johnson’s apartment along with Johnson’s younger sister, A.U., and Johnson’s
sister-in-law, Greta. As they neared Shawn’s apartment, they heard the men
arguing.
At that point, Appellant went into Shawn’s apartment and retrieved a
firearm, which witnesses later described as a rifle. Standing on the balcony,
Appellant began firing the rifle. The first shot hit the railing. The second shot hit
Johnson in the leg, and he fell to the ground. As he descended the stairs, Appellant
continued to fire the rifle, repeatedly shooting Johnson as he lay on the ground.
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Appellant shot Johnson five times, shooting him in the leg, back, neck, arm,
and face. Phyllis, A.U., and Greta witnessed the shooting. After he shot Johnson,
Appellant held the gun to Phyllis’s head. She told him to either shoot or run.
Appellant chose to flee the apartment complex.
Soon after, the police and an ambulance arrived. Johnson was transported to
the hospital where he remained for 28 days. He underwent numerous surgeries but
survived the shooting.
Appellant was arrested and charged with the offense of aggravated assault.
The indictment charging Appellant read as follows: “[O]n or about August 30,
2011, [Raephil Johnson] did then and there unlawfully, intentionally and
knowingly cause bodily injury to Bryan Johnson by using a deadly weapon,
namely, a firearm.”
At trial, the State presented the testimony of Phyllis, A.U., and Greta.
Johnson also testified. Each of the State’s witnesses testified that Appellant shot
Johnson numerous times.
The witnesses stated that Appellant had gone into Shawn’s apartment and
retrieved a gun. When he came out, Appellant shot Johnson in the leg, and
Johnson fell to the ground. Appellant came down the stairs and continued shooting
Johnson as he lay on the ground. Phyllis, Greta, and A.U. each testified that, as he
descended the stairs, Appellant was firing the gun. Phyllis stated that Appellant
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was standing over Johnson when he shot him in the face. Each witness also
testified that Johnson was unarmed at the time of the shooting.
Appellant testified in his own defense. He stated that there had been an
argument between Kenyatta and Shawn regarding money and drugs. He claimed
that, when he and Shawn went outside, Johnson was already standing on the
ground outside the apartment. Appellant testified that Johnson had been the first
one to pull out a gun. Appellant claimed that he retrieved the rifle in response to
Johnson displaying his weapon first. He stated that Shawn had instructed him to
get the rifle from the apartment. Appellant testified that, at the time, he believed
Johnson planned to use his gun. Appellant testified that he feared being shot by
Johnson. He indicated that he shot Johnson to prevent Johnson from shooting him
first.
Appellant acknowledged that he shot Johnson five times. Contrary to the
testimony of the State’s witnesses, Appellant claimed that he shot Johnson only
from the upstairs balcony. Appellant also denied putting a gun to Phyllis’s head.
Appellant testified that he believed one of Johnson’s brothers had picked up
Johnson’s gun and had taken it away before the police arrived. With respect to
Johnson having a gun, Appellant claimed, “[H]e sure had one.” On direct
examination, Appellant emphasized that he feared for his life when he shot
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Johnson. On cross-examination, Appellant agreed that he “intended” to shoot
Johnson, and he “knew” that it would hurt Johnson.
The jury charge included instructions on the law of self-defense. Implicitly
rejecting Appellant’s claim of self-defense, the jury found appellant guilty of the
offense of aggravated assault. Appellant choose to have the trial court assess
punishment. The court sentenced Appellant to 20 years in prison. This appeal
followed.
Charge Error
In his sole issue, Appellant asserts that the trial court erred because the
definition of “knowingly,” found in the abstract portion of the jury charge, failed to
limit the culpable mental state to the result of his conduct. Instead, the definition
also included references to the nature and circumstances surrounding Appellant’s
conduct. On appeal, Appellant specifically complains of the nature-of-the-conduct
language. Appellant did not object to the submitted jury charge on this ground in
the trial court.
A trial court must instruct a jury by “a written charge distinctly setting forth
the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon
2007). A review of charge error involves a two-step analysis. Abdnor v. State, 871
S.W.2d 726, 731 (Tex. Crim. App. 1994). We first decide whether error actually
exists in the charge. Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)
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(citing Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim. App. 2003)). If we
determine that error exists, we then analyze the error for harm. Id.
Here, in the abstract portion of the submitted charge, the trial court correctly
defined the offense of aggravated assault, as charged in this case. In this regard,
the trial court instructed the jury: “A person commits the offense of assault if the
person intentionally or knowingly causes bodily injury to another.” See TEX.
PENAL CODE ANN. § 22.01 (Vernon Supp. 2013). The court further instructed the
jury: “A person commits the offense of aggravated assault if the person commits
assault, as hereinbefore defined, and the person uses or exhibits a deadly weapon
during the commission of the assault.” See TEX. PENAL CODE ANN. § 22.02(a)
(Vernon 2011).
Section 6.03 of the Penal Code “delineates three ‘conduct elements’ which
may be involved in an offense: (1) the nature of the conduct; (2) the result of the
conduct; and (3) the circumstances surrounding the conduct.” Cook v. State, 884
S.W.2d 485, 487 (Tex. Crim. App. 1994); see TEX. PENAL CODE ANN. § 6.03
(Vernon 2011). The culpable mental state definitions in a charge must be tailored
to the conduct elements of the offense. Cook, 884 S.W.2d at 487. “It is error for a
trial judge to not limit the definitions of the culpable mental states as they relate to
the conduct elements involved in the particular offense.” Id. at 491.
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Under Penal Code section 22.01(a)(1), a person commits assault if he
intentionally, knowingly, or recklessly causes bodily injury to another. TEX.
PENAL CODE ANN. § 22.01(a)(1). As charged in this case, a person commits
aggravated assault under Penal Code section 22.02(a)(2) if he commits assault by
causing bodily injury, and the person “uses or exhibits a deadly weapon during the
commission of the assault.” TEX. PENAL CODE ANN. § 22.02(a)(2). Arguably,
under section 22.02(a)(2), the gravamen of the aggravated assault is causing body
injury, thus making it a result-oriented offense. See In re J.A.B., No. 08–11–
00244–CV, 2013 WL 3943087, at *5 (Tex. App.—El Paso July 24, 2013, no pet.)
(holding that section 22.02(a)(2) aggravated assault is a result-oriented offense).
However, at least one court has characterized aggravated assault by causing bodily
injury, accompanied by the use or exhibition of a deadly weapon, as a result-
oriented offense that also includes a nature-of-conduct element, namely, the
defendant’s use or exhibition of the deadly weapon. See Johnson v. State, 271
S.W.3d 756, 761 (Tex. App.—Waco 2008, pet. ref’d).
Here, the abstract portion of the charge included the following instructions
and definitions regarding “intentionally” and “knowingly”:
A person acts intentionally, or with intent, with respect to a result of
his conduct when it is his conscious objective or desire to cause the
result.
A person acts knowingly, or with knowledge, with respect to the
nature of his conduct or to circumstances surrounding his conduct
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when he is aware of the nature of his conduct or that the
circumstances exist. A person acts knowingly, or with knowledge,
with respect to a result of his conduct when he is aware that his
conduct is reasonably certain to cause the result.
(Emphasis added.)
The trial court’s definition of intentionally was limited to the result of the
conduct. In contrast, the trial court’s definition of knowingly was not limited to
the result of the conduct. Instead, the definition of knowingly also included
language regarding the nature of the conduct and language regarding the
circumstances surrounding the conduct. Thus, regardless of whether the offense of
aggravated assault by causing bodily injury accompanied by use of a deadly
weapon is simply a result-oriented offense or is a result-oriented offense that also
includes a nature-of-conduct element, the inclusion of the circumstances-
surrounding-the-conduct language was improper.
The Court of Criminal Appeals has made clear that “[i]t is error for a trial
judge to not limit the definitions of the culpable mental states as they relate to the
conduct elements involved in the particular offense.” Cook, 884 S.W.2d at 491.
Accordingly, the trial court erred when it included circumstances-surrounding-the-
conduct language in the definition of knowingly in the abstract portion of the jury
charge. And, even if we presume that it was error to include the nature-of-the
conduct language, as Appellant asserts, we conclude that Appellant was not
harmed by the inclusion of such language, as discussed infra.
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When, as here, a defendant does not object, or states that he has no objection
to a jury charge, an error will not result in reversal unless the record shows
“egregious harm” such that the defendant was denied a fair trial. See Almanza v.
State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); see also Warner v. State, 245
S.W.3d 458, 461 (Tex. Crim. App. 2008). Egregious harm exists when the record
shows that a defendant has suffered actual, rather than merely theoretical, harm
from jury-charge error. Almanza, 686 S.W.2d at 174. To meet this standard, the
error must be so harmful 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). We consider the four factors
identified in Almanza: (1) the entire jury charge, (2) the state of the evidence, (3)
the arguments of counsel, and (4) any other relevant information revealed by the
record of the trial as a whole. Almanza, 686 S.W.2d at 171; see also Olivas v.
State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).
The first Almanza factor requires consideration of the entire jury charge. See
Almanza, 686 S.W.2d at 171. In considering the charge as a whole, we “may
consider the degree, if any, to which the culpable mental states were limited by the
application portions of the jury charge.” Hughes v. State, 897 S.W.2d 285, 296
(Tex. Crim. App. 1994). Here, the application portion of the jury charge read as
follows:
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Now, if you find from the evidence beyond a reasonable doubt that on
or about the 30th day of August, 2011, in Harris County, Texas, the
defendant, Raephil Johnson, did then and there unlawfully,
intentionally or knowingly cause bodily injury to Bryan Johnson by
using a deadly weapon, namely, a firearm, then you will find the
defendant guilty of aggravated assault, as charged in the indictment.
The trial court instructed the jury to find appellant guilty only if it found that
he intentionally or knowingly caused the result, that is, caused bodily injury. As
worded, the application paragraph directed the jury to the appropriate portion of
the definitions of intentionally and knowingly. See Hughes, 897 S.W.2d at 296.
Ultimately, we presume the jury followed the instruction in the charge. See
Williams v. State, 937 S.W.2d 479, 490 (Tex. Crim. App. 1996).
We also note that Texas courts have recognized that error in the abstract
portion of the jury charge did not result in egregious harm to a defendant when the
application paragraph had correctly instructed the jury on the law applicable to the
case. See, e.g., Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); Kuhn
v. State, 393 S.W.3d 519, 529–30 (Tex. App.—Austin 2013, pet. ref’d); but see
Dougherty v. State, No. PD–1411–05, 2006 WL 475802 at *1 (Tex. Crim. App.
March 1, 2006) (not designated for publication) (holding that, although appellate
court correctly set forth the standard of review for assessing harm, a harm analysis
based on charge error could not be based only on the jury charge, and must include
consideration of all four Almanza factors).
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In addition, as mentioned, the alternative culpable mental state of
intentionally was limited, in the abstract portion of the charge, to the result of
Appellant’s conduct, which Appellant asserts is the appropriate culpable mental
state. “The harmfulness of error in a jury charge should be measured, at least in
part, against the likelihood that the jury’s verdict was actually based upon an
alternative theory of culpability not affected by erroneous portions of the charge.”
Williams v. State, 226 S.W.3d 611, 618 (Tex. App.—Houston [1st Dist.] 2007, no
pet.) (citing Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996)).
Here, the evidence presented at trial was sufficient for the jury to find
Appellant guilty under the intentionally culpable mental state. Based on the
evidence presented, the jury could have reasonably found that Appellant
intentionally caused bodily injury to Johnson by shooting him with a firearm. The
evidence showed that Appellant shot Johnson five times with a rifle as he advanced
toward Johnson. Moreover, Phyllis testified that, at the time Johnson was lying
injured on the ground, Appellant stood over Johnson and shot him in the face.
Appellant testified that he shot Johnson five times, albeit allegedly in self-
defense. Appellant never disputed that he intentionally caused Johnson bodily
injury. To the contrary, as presented, it was implicit in Appellant’s theory of self-
defense in this case. Appellant’s testimony indicated that he shot Johnson to stop
him from shooting him first. In short, the evidence supported a finding that
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Appellant intentionally caused Johnson bodily injury. Thus, with respect to the
element of causing bodily injury, the jury was presented with an alternate theory of
culpability, supported by sufficient evidence, on which it could have found
Appellant guilty. We conclude that the charge as a whole does not weigh in favor
of a finding of egregious harm.
We next turn to the second Almanza factor: the state of the evidence.
Appellant’s defense at trial was that he acted in self-defense. Appellant admitted
to shooting Johnson five times, and he admitted that he knew that shooting
Johnson would hurt him. He never disputed that the firearm he used was a deadly
weapon. See Anderson v. State, 11 S.W.3d 369, 372 (Tex. App.—Houston [1st
Dist.] 2000, pet. ref’d) (“To raise the issue of self-defense, appellant must admit
the committed offense and then offer self-defense as justification.”). To the
contrary, Appellant indicated that he shot Johnson to stop him from shooting first.
Appellant never claimed that he did not intentionally or knowingly cause Johnson
bodily injury. In fact, his testimony showed that he intended to cause injury to
Johnson to stop Johnson from shooting first. Appellant admitted that he knew
shooting Johnson would hurt Johnson. Appellant never indicated that he lacked
the requisite culpable mental state to commit the charged offense, nor did any
evidence raise this inference.
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Self-defense aside, the State’s evidence also showed Appellant knowingly
and intentionally caused Appellant bodily injury. The evidence showed that
Appellant continued to shoot Johnson four more times after he was shot in the leg
and was lying on the ground. The evidence also showed that Appellant was
advancing toward Johnson as he shot him. Johnson’s mother testified that
Appellant shot Johnson in the face as he stood over him. The State also presented
testimony from a police officer establishing that Johnson was shot with a firearm
and that a firearm is a deadly weapon. After reviewing the evidence, we conclude
that the second Almanza factor does not indicate that Appellant was egregiously
harmed by the charge error.
With regard to the third Almanza factor—arguments of counsel—the State
briefly mentioned that Appellant had admitted to shooting Johnson and causing
him bodily injury. However, the State did not highlight or rely on the erroneous
instruction. Instead, both side’s argument focused on whether Appellant was
justified in shooting Johnson based on the theory of self-defense. The primary
point of contention was whether Johnson had a gun at the time of the incident. In
sum, we perceive nothing in the closing arguments to indicate that Appellant was
egregiously harmed by the charge error.
Finally, with regard to the final Almanza factor, Appellant has not pointed to
any other relevant information, nor are we aware of any information that should be
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considered in analyzing any potential harm. Thus, in light of the Almanza factors,
we conclude that Appellant did not suffer egregious harm as a result of the charge
error.
After reviewing the record and considering the Almanza factors, we hold
that the trial court’s error in the abstract portion of the jury charge, with respect to
its definition of “knowingly,” did not cause Appellant to suffer egregious harm.
We overrule Appellant’s sole issue.
Conclusion
We affirm the judgment of the trial court.
Laura Carter Higley
Justice
Panel consists of Justices Jennings, Higley, and Sharp.
Do not publish. TEX. R. APP. P. 47.2(b).
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