Elray Wynn Johnson v. State of Texas

Opinion filed July 24, 2008

Opinion filed July 24, 2008

                                                                        In The

    Eleventh Court of Appeals

                                                                   __________

                                                          No. 11-07-00202-CR

                                                     __________

                                 ELRAY WYNN JOHNSON, Appellant  

                                                             V.

                                        STATE OF TEXAS,  Appellee  

                                  On Appeal from the County Court at Law No. 2

                                                         Orange County, Texas

                                                  Trial Court Cause No. E94273

                                              M E M O R A N D U M   O P I N I O N

The jury convicted Elray Wynn Johnson of assault and assessed his punishment at confinement in the Orange County Jail for a term of 240 days.  Appellant challenges his conviction in two points.  We reverse and remand.

                                                               Background Facts

The State charged appellant with intentionally and knowingly causing bodily injury to Deborah Bonin by grabbing her left arm and causing her to fall to the ground.  In accordance with  Tex. Code. Crim. Proc. Ann. art. 46C.051 (Vernon 2006), appellant filed notice of his intent to raise an insanity defense at trial.  The trial court permitted appellant to present evidence regarding his mental state at the time of the incident.  However, the trial court subsequently denied appellant=s request to submit an insanity issue in the court=s charge.

The State called Bonin as a witness at trial.  Despite her status as the victim of the charged offense, Bonin=s trial testimony was essentially adverse to the State.  Bonin testified that she is a registered nurse specializing in psychiatric care.  She and appellant lived together and were romantically involved with each other.  She testified that she called 911because she was afraid that appellant was going to harm himself based on statements he had made.  Bonin stated that appellant was despondent and tearful and had been sleeping off-and-on for days.  When asked why she called the sheriff=s department, Bonin responded:

Because it had gotten to the point that he was B he didn=t know what he was doing.  He was ranting and raving.  He was talking to people that wasn=t there.  And when he made the statement he=d take me and him both out, I took it literally at that moment, because he didn=t know what he was doing.

The State offered Bonin=s written statement of the incident into evidence during her direct testimony. She stated as follows in the statement:

He wanted his gun [and] I wouldn=t tell him where it was.  I was walking across the yard when he ran up [and] grabbed my arm dragging me to the ground.  He threatened to shoot me [and] himself.  He had the gun yesterday threatening to shoot himself so I hid the gun.  

He needs mental help.  He won=t go voluntarily.  He has been on medication before.  He cycles from depressed [and] tearful to angry [and] violent.

On cross-examination, Bonin testified that she had called three mental health care providers seeking to admit appellant for  treatment prior to calling 911.  When asked why she called 911, Bonin responded as follows: ABecause there was nowhere to take him.  He didn=t know what he was doing.  He didn=t know what was going on.  And that=s the only way that I could get him in a safe environment at that point.@  She further testified that she did not believe appellant knew what he was doing or that he knew his conduct was wrong.

The incident occurred on a Friday evening.  Bonin testified that she obtained an appointment for appellant with Kim D. Best, a physician=s assistant that provided psychiatric care, on the following Monday.  Bonin bonded appellant out of jail for the appointment. Best stated in appellant=s medical records that he treated appellant for Aanger outbursts and mild manic like episodes.@ Best also identified the diagnoses of Amanic-depressive psychosis, depressed type@ and Adepressive disorder, not elsewhere classified@ in the medical records.  Best prescribed Risperdal and Effexor for appellant. Bonin testified that Effexor is an antidepressant and Risperdal is Aa very strong anti-psychotic.@

The State also offered the testimony of Deputy Jerry Kibodeaux.  Deputy Kibodeaux testified that appellant told him at the scene that he grabbed Bonin=s arm as she attempted to walk away and that she tripped over a stump.  He also observed a bruise on Bonin=s left bicep and lacerations on her right knee and upper right leg.  The State offered into evidence photographs taken of Bonin that depicted these injuries.  Deputy Kibodeaux testified that appellant was Acollected@ when he initially spoke with deputies but that he started screaming and hollering when he was placed under arrest.

                                                                         Points

Appellant challenges the legal and factual sufficiency of the evidence in his first point. He asserts in his second point that the trial court erred in denying his request to submit an insanity issue in the court=s charge.

                                                        Sufficiency of the Evidence

In order to determine if the evidence is legally sufficient, we must review all the evidence in the light most favorable to the verdict and 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 (1979); Jackson v. State, 17 S.W.3d 664, 667 (Tex. Crim. App. 2000). To determine if the evidence is factually sufficient, the appellate court reviews all of the evidence in a neutral light. Watson v. State, 204 S.W.3d 404, 414 (Tex. Crim. App. 2006) (overruling in part Zuniga v. State, 144 S.W.3d 477 (Tex. Crim. App. 2004)); Johnson v. State, 23 S.W.3d 1, 10‑11 (Tex. Crim. App. 2000); Cain v. State, 958 S.W.2d 404, 407‑08 (Tex. Crim. App. 1997); Clewis v. State, 922 S.W.2d 126, 129 (Tex. Crim. App. 1996). Then, the reviewing court determines whether the evidence supporting the verdict is so weak that the verdict is clearly wrong and manifestly unjust or whether the verdict is against the great weight and preponderance of the evidence. Watson, 204 S.W.3d at 414‑15; Johnson, 23 S.W.3d at 10‑11.  The jury, as the finder of fact, is the sole judge of the weight and credibility of the witnesses= testimony.  Tex. Code Crim. Proc. Ann. art. 36.13 (Vernon 2007), art. 38.04 (Vernon 1979).

Appellant bases his evidentiary challenge on two contentions.  He first asserts that there is no evidence that Bonin suffered physical pain or impairment of physical condition. See Tex. Penal Code Ann. '' 1.07(a)(8), 22.01(a)(1) (Vernon Supp. 2007).  We disagree.  The evidence reflects that Bonin suffered a bruise and lacerations from the incident.  The jury could have reasonably inferred that she suffered pain from these injuries.  See Randolph v. State, 152 S.W.3d 764, 774 (Tex. App.CDallas 2004, no pet.) (A jury may infer that a victim actually felt or suffered physical pain because people of common intelligence understand pain and some of the natural causes of it.).

Appellant additionally contends that the evidence is insufficient to establish that he intentionally and knowingly assaulted Bonin based upon her testimony that appellant did not know what he was doing.  This contention is not a valid basis for challenging the sufficiency of the evidence.  The Texas Court of Criminal Appeals stated as follows in Jackson v. State, 160 S.W.3d 568, 574-75 (Tex. Crim. App. 2005):

[P]resenting evidence of mental illness does not then allow the defense to argue that the defendant is absolutely incapable i.e., does not have the capacity to intentionally or knowingly perform an act.  There is simply no defense recognized by Texas law stating that, due to the defendant=s mental illness, he did not have the requisite mens rea at the time of the offense because he does not have the capacity, or is absolutely incapable of ever forming that frame of mind.

Texas does not recognize diminished capacity as an affirmative defense, i.e., a lesser form of the defense of insanity.  Id. at 573. 

In light of Bonin=s written account of the incident, a rational trier of fact could have concluded beyond a reasonable doubt that appellant intentionally and knowingly caused bodily injury to her by grabbing her arm and dragging her down.  Moreover, Deputy Kibodeaux=s testimony that appellant was Acollected@ immediately after the incident is some evidence that he knew what he was doing.  Appellant=s factual sufficiency challenge based upon the evidence that appellant lacked the capacity to possess the requisite mens rea is precluded under Jackson.  Appellant=s first point is overruled.

                                                                   Insanity Issue

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).  Initially, we must determine whether error occurred.  If so, we must then evaluate whether sufficient harm resulted from the error to require reversal.  Id. at 731‑32. Error in the charge, if timely objected to in the trial court, requires reversal if the error was Acalculated to injure the rights of [the] defendant,@ which means no more than that there must be some harm to the accused from the error. Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); see also Abdnor, 871 S.W.2d at 731‑32; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). In other words, a properly preserved error will call for reversal as long as the error is not harmless.  Almanza, 686 S.W.2d at 171.

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.  Ferrel v. State, 55 S.W.3d 586, 591 (Tex. Crim. App. 2001).  We review the evidence in the light most favorable to the defendant to determine whether a defensive issue should have been submitted.  See Ferrel, 55 S.W.3d at 591.

The affirmative defense of insanity applies if Aat the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.@ Tex. Penal Code Ann. ' 8.01(a) (Vernon 2003).  AIn a case tried to a jury, the issue of the defendant=s sanity shall be submitted to the jury only if the issue is supported by competent evidence.@ Tex. Code Crim. Proc. Ann. art. 46C.151 (Vernon 2006).  If evidence from any source raises the issue of insanity, the trial court must include an instruction on this defense in the jury charge.  Gibson v. State, 726 S.W.2d 129, 132 (Tex. Crim. App. 1987). When considered with facts and circumstances concerning an accused and the offense, lay opinion testimony may be sufficient to raise the defense of insanity.  Pacheco v. State, 757 S.W.2d 729, 736 (Tex. Crim. App. 1988).

Bonin testified that she believed appellant did not know what he was doing at the time of the incident and that he did not know that his conduct was wrong.  She also testified that she felt appellant needed mental health treatment and she took steps to seek this treatment both immediately before and after the incident.  Appellant also offered medical records from the mental health treatment he received a few days after the incident. 

The trial court based its decision to deny the requested insanity issue on Best=s statement that appellant suffered Amild manic like episodes@ (emphasis added).  The trial court concluded that this evidence did not rise to the level of competent evidence because the Penal Code requires evidence of a Asevere mental disease or defect@ (emphasis added).  See Section 8.01.  We do not believe that the trial court=s assessment of Best=s findings is necessarily invalid.  However, we conclude that there is additional evidence in the record that rose to the level of competent insanity evidence.  Bonin testified that appellant suffered from mental illness that she believed rendered him unable to know that his conduct was wrong.  Her lay opinion of appellant=s insanity, when viewed in the light most favorable to appellant, constitutes competent evidence of appellant=s sanity.  Therefore, the trial court erred in not submitting the requested insanity issue in the court=s charge.  Appellant=s second point is sustained.  In light of the evidence of appellant=s insanity, we cannot hold that the error was harmless.  

                                                               This Court=s Ruling

The judgment of the trial court is reversed, and the cause is remanded for new trial.

TERRY McCALL

JUSTICE

July 24, 2008

Do not publish. See Tex. R. App. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Strange, J.