Daniel Douglas v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN



NO. 03-98-00301-CR



Daniel Douglas, Appellant

v.

The State of Texas, Appellee



FROM THE DISTRICT COURT OF TRAVIS COUNTY, 299TH JUDICIAL DISTRICT NO. 0974432, HONORABLE JON N. WISSER, JUDGE PRESIDING

A jury found appellant Daniel Douglas guilty of aggravated assault with a deadly weapon. See Tex. Penal Code Ann. § 22.02(a) (West 1994). The trial court assessed punishment at twenty years in prison. Appellant raises three points of error complaining that the evidence was insufficient, there was error in the jury charge, and the trial court misread the indictment. We will affirm the judgment of conviction.

Background

In February 1997, Kiri Kalvaitis became friends with Carlos Garcia, Greg Gonzales, James Gonzales, and appellant. The four men lived in a house at 2713 East Manor Road in Austin. Kalvaitis visited the house frequently. Although Kalvaitis was friendly with all four men, she was particularly attracted to Garcia. On several occasions Kalvaitis spent the night at the house sleeping on a couch in Garcia's room. On the evening of March 19, 1997, Kalvaitis phoned the house to tell Garcia that she was coming over. Appellant answered the phone and told her that Garcia and his friends were in an argument and that it was not a good time for her to come over. Appellant suggested that the two of them meet at the Manor Road coffeehouse where the group often gathered. Kalvaitis met appellant at the coffeehouse for a few beers and the two went back to the house. No one else was there when they arrived and they sat in the kitchen and talked and had a few more beers. Greg Gonzales came home during the evening. Eventually Kalvaitis wanted to go to sleep. Appellant wanted Kalvaitis to sleep in his room but she told him no. Instead, Kalvaitis went to sleep on the couch in Garcia's bedroom. Later that night, Kalvaitis awoke to find appellant sitting on the couch holding a knife to her throat. He told her in an angry voice, "you're going to do it my way." Kalvaitis screamed and was knocked unconscious by a blow to the head. She awoke covered in blood. After viewing her head injury in the bathroom mirror, she went to Greg Gonzales' room seeking help. He escorted her to the hospital emergency room where she received twenty-six stitches in her head.

After the trip to the emergency room, Kalvaitis returned with Greg Gonzales to the house to review the scene. Appellant was not there. Kalvaitis noticed a bloody metal tire iron lying on the floor next to the couch which she believed appellant used to knock her unconscious. She also noticed a large knife lying beside the couch which she believed appellant held against her throat when he threatened her. Neither of these items was there when she went to sleep.

Discussion

The indictment alleged that appellant

intentionally, knowingly, and recklessly cause[d] bodily injury to Kiri Kalvaitis by striking her with a metal tire tool, and . . . did then and there use and exhibit a deadly weapon, to wit: a knife, that in the manner of its use and intended use was capable of causing death and serious bodily injury during the commission of this offense.

By three points of error appellant contends that (1) the evidence is insufficient to show that appellant used a metal tire tool; (2) the charge allowed the jury to convict on a theory not alleged in the indictment; and (3) the trial court misread the indictment and therefore appellant never entered a proper plea to the indictment.

Sufficiency of the Evidence  

In the first point of error appellant contends that the evidence is insufficient to support the necessary finding that he used a "metal tire tool" to assault Kalvaitis. Appellant argues that the item in question was not a metal tire tool, but rather was part of a tire jack stand. Appellant's automotive expert, George Rohrbough, testified that the item introduced as a tire tool was in fact part of a safety jack used to lift a car while a person is working underneath the car and was not a metal tire tool. Rohrbough described a tire tool as either of two implements--one would be a cross-shaped lug nut wrench capable of removing four different sizes of lug nuts and the second would be an L-shaped rod with one end capable of being placed in a jack to lift the car with the other end capable of removing lug nuts. On cross-examination, however, Rohrbough testified that a "jack" could be considered a tire tool. The prosecutor asked Rohrbough, "And this particular item could be defined as a tire tool in the use of changing tires?" Rohrbough responded, "It could be defined as a tire tool in conjunction with other tools."

In determining the sufficiency of the evidence to support a criminal conviction, the question is whether, after viewing all the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307 (1979); Geesa v. State, 820 S.W.2d 154 (Tex. Crim. App. 1991); Griffin v. State, 614 S.W.2d 155 (Tex. Crim. App. 1981). The jury is the exclusive judge of the credibility of witnesses and the weight to be given their testimony and is free to accept or reject all or any part of any witness's testimony. Adelman v. State, 828 S.W.2d 418, 421 (Tex. Crim. App. 1992). The jury may draw reasonable inferences and make reasonable deductions from the evidence. Benavides v. State, 763 S.W.2d 587, 588-89 (Tex. App.--Corpus Christi 1988, pet. ref'd). The jury reconciles any evidentiary conflicts. Miller v. State, 909 S.W.2d 586, 593 (Tex. App.--Austin 1995, no pet.) (citing Bowden v. State, 628 S.W.2d 782, 787 (Tex. Crim. App. 1982)).

The jury could decide which portion of the expert's testimony to believe. In addition to the cross-examination testimony by Rohrbough that the tire jack could be considered a tire tool, the jury was able to view the exhibit. Sufficient evidence exists to support the finding that appellant used a metal tire tool in committing the offense. Point of error one is overruled.

Charge Error  

In point of error two, appellant contends that the trial court erred in charging the jury about a deadly weapon. The indictment alleged appellant used a knife, that in "the manner of its use and intended use was capable of causing death or serious bodily injury." The abstract portion of the jury charge defined "deadly weapon" according to the complete statutory definition as "anything manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or anything that in the manner of its use or intended use is capable of causing death or serious bodily injury." See Tex. Penal Code Ann. § 1.07(a)(17) (West 1994). The application portion of the jury charge tracked the language of the indictment but omitted the phrase relating to the deadly weapon "that in the manner of its use and intended use was capable of causing death or serious bodily injury."

Appellant contends that, based on the charge given, the jury could have convicted him on a theory not alleged in the indictment. He contends that the charge expanded on the allegations in the indictment related to a deadly weapon. Appellant argues that based on the charge given, the jury could have found either that the knife (1) was designed, made, or adapted for the purpose of inflicting death or serious bodily injury, or (2) in the manner of its use or intended use was capable of causing death or serious bodily injury. Appellant failed to raise this charge complaint before the trial court.

Because appellant failed to raise this complaint as a trial objection, we must determine (1) if error exists, and if so (2) was the error "so egregious and created such harm that [appellant] has not had a fair and impartial trial." Almanza v. State, 686 S.W.2d 157, 173 (Tex. 1985) (opinion on rehearing). In determining whether egregious harm exists, any error must be viewed in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel and any other relevant information contained in the trial-court record. Mann v. State, 964 S.W.2d 639, 641 (Tex. Crim. App. 1998).

The State directs our attention to the jury charge given in Bonfanti v. State, which also expanded the allegations in the indictment. 686 S.W.2d 149, 152 (Tex. Crim. App. 1985). The Bonfanti charge instructed the jury that they could find the defendant guilty of aggravated sexual assault by finding that the defendant either caused serious bodily injury or, as alleged in the indictment, threatened death or serious bodily injury. Id. In reviewing the record, the Bonfanti court held that the evidence of the defendant's guilt of committing aggravated sexual assault by threatening death and serious bodily injury was overwhelming and uncontradicted. Id. at 153. Moreover, during argument, neither the State nor the defense made an issue of either the need for or lack of proof of bodily injury. Serious bodily injury was not an issue that was argued or presented to the jury. Id. The Bonfanti court concluded that a jury would not have been misled by the erroneous addition in the charge and that a rational jury would not have found the addition a reasonable theory under which to convict the defendant. Id. The defendant received a fair and impartial trial. See also Bishop v. State, 914 S.W.2d 200, 201 (Tex. App.--Beaumont 1995, pet. ref'd) (no egregious error where indictment for aggravated sexual assault contained deadly weapon manner-and-use language, however, jury charge general definition of sexual assault contained all ways sexual assault may be aggravated and application paragraph in charge did not contain manner-and-use language).

First, we conclude that the trial court erred by expanding on the allegations in the indictment. Next, we must determine the actual degree of harm in light of the entire charge, the state of the evidence, the contested issues in the case, and other relevant information contained in the trial-court record. See Bonfanti, 686 S.W.2d at 153; Bishop, 914 S.W.2d at 201.

The overwhelming weight of the evidence showed that appellant threatened Kalvaitis with a knife. Kalvaitis testified that appellant placed the blade of the knife at her throat and told her in an angry voice, "you're going to do it my way." Kalvaitis's testimony was not contradicted or rebutted. In appellant's brief to this Court, he agrees with the State that the only proof at trial pertained to the knife's "manner of use." Like Bonfanti, there was no evidence presented that would have supported the additional theory that the knife was manifestly designed to inflict serious bodily injury. During argument, neither the State nor the defense made an issue of whether the knife was manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. The State argued only the manner-and-use definition of deadly weapon to the jury. The thrust of appellant's argument to the jury was that no knife existed. Appellant never argued that a knife, manifestly designed to inflict death or serious bodily injury, was used.

A rational jury could not have been misled by the erroneous addition in the charge, nor could it have found the addition a reasonable theory upon which to convict appellant. Appellant received a fair and impartial trial. Point of error two is overruled.

Misreading the Indictment

In point of error three, appellant contends the trial court erred by proceeding to trial without appellant's entering a proper plea to the indictment. Specifically, appellant complains for the first time on appeal about the prosecutor's failure to read all of the indictment to the jury before he entered his plea. He contends that while the prosecutor read most of the indictment to the jury, the portion related to the knife, "that in the manner of its use and intended use was capable of causing death or serious bodily injury," was not included.

The prosecutor's reading of the indictment to the jury is mandatory. See Tex. Code Crim. Proc. Ann. art. 36.01(a)(1) (West Supp. 1999); Warren v. State, 693 S.W.2d 414, 415 (Tex. Crim. App. 1985). Failure to do so may constitute reversible error. Warren, 693 S.W.2d at 416; Hinojosa v. State, 788 S.W.2d 594, 599 (Tex. App.--Corpus Christi 1990, pet. ref'd). Until the indictment is read and a defendant's plea entered, no issue is joined between the State and the defendant. See Peltier v. State, 626 S.W.2d 30, 31 (Tex. Crim. App. 1981). However, reversible error does not exist when no objection is raised at trial to the misreading of the indictment. Craig v. State, 480 S.W.2d 680, 684 (Tex. Crim. App. 1972); Leal v. State, 711 S.W.2d 702, 708 (Tex. App.--Corpus Christi 1986, no pet.); Nolan v. State, 624 S.W.2d 721, 724 (Tex. App.--Amarillo 1981, no pet.).

Because appellant failed to raise an objection to the misreading of the indictment before the trial court, he has not preserved this complaint for appeal. See also Warren, 693 S.W.2d at 416. Point of error three is overruled.

Conclusion

Because we determine that the evidence is sufficient to support the finding that appellant used a metal tire tool, that error occurring in the jury charge was not egregious, and that appellant did not preserve his complaint about the misreading of the indictment for appeal, we affirm the conviction.

J. Woodfin Jones, Justice

Before Chief Justice Aboussie, Justices Jones and B. A. Smith

Affirmed

Filed: May 6, 1999

Do Not Publish

the contested issues in the case, and other relevant information contained in the trial-court record. See Bonfanti, 686 S.W.2d at 153; Bishop, 914 S.W.2d at 201.

The overwhelming weight of the evidence showed that appellant threatened Kalvaitis with a knife. Kalvaitis testified that appellant placed the blade of the knife at her throat and told her in an angry voice, "you're going to do it my way." Kalvaitis's testimony was not contradicted or rebutted. In appellant's brief to this Court, he agrees with the State that the only proof at trial pertained to the knife's "manner of use." Like Bonfanti, there was no evidence presented that would have supported the additional theory that the knife was manifestly designed to inflict serious bodily injury. During argument, neither the State nor the defense made an issue of whether the knife was manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury. The State argued only the manner-and-use definition of deadly weapon to the jury. The thrust of appellant's argument to the jury was that no knife existed. Appellant never argued that a knife, manifestly designed to inflict death or serious bodily injury, was used.