Joshua Edward Williams v. State

Opinion issued June 10, 2014.
In The
Court of Appeals
For The
First District of Texas
————————————
NO. 01-13-00361-CR
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JOSHUA EDWARD WILLIAMS, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 262nd District Court
Harris County, Texas
Trial Court Case No. 1358724
MEMORANDUM OPINION
Joshua Edward Williams was convicted by a jury of aggravated assault of a
public servant with a deadly weapon.1 The trial court sentenced Williams to 68
1
TEX. PENAL CODE ANN. §§ 22.02(a)(2), (b)(2)(A) (West 2011) (criminalizing
using or exhibiting deadly weapon during commission of assault against person
known to be public servant lawfully discharging an official duty).
years’ confinement. In two issues, Williams contends that the trial court erred by
(1) refusing to submit a lesser-included offense instruction to the jury and (2)
admitting evidence of a prior conviction. We affirm.
Background
Late one evening, police received an emergency phone call reporting that
three men wearing hooded sweatshirts were attempting to burglarize a home in
north Houston. According to the emergency phone call, one man wore a mask and
another carried a gun. Houston Police Officers M. Enriquez and A. Newman
responded to the call, arriving at the scene in a marked patrol car. Enriquez and
Newman testified that as they neared the house, they saw a black BMW drive away
from the house “at a high rate of speed.” Enriquez and Newman chased the BMW.
The BMW driver eventually turned off the car’s lights and slowed to a stop. Two
men jumped out of the driver’s side of the car, and Williams jumped out of the
passenger side of the car. Enriquez ran after the men who escaped from the driver’s
side while Newman chased Williams. The driver of the BMW, who had remained
in the car, drove directly at Newman and hit him before Newman could catch up
with Williams. Enriquez testified that when he heard the collision he returned to
check on Newman. After confirming that Newman did not have any major injuries,
Enriquez ran after Williams. During the chase, Williams turned and began to shoot
at Enriquez. Enriquez returned fire, and one of his shots hit Williams in the leg.
2
Enriquez “saw a gun fly away” from Williams’s body. In total, Williams fired nine
shots and Enriquez fired five shots. Enriquez testified that he feared for his life.
Once Williams was caught, the police searched him and found a black ski
mask in his pocket. He also had a gunshot wound in his leg. Williams was charged
with aggravated assault of a public servant with a deadly weapon.
The trial court presented the parties with a draft jury charge during
presentation of the evidence in the guilt phase of trial. When the trial court asked
whether he had any objections, Williams requested that the trial court instruct the
jury on the “lesser included [offense] of deadly conduct relying upon the Isaac
case and the Ford case, both out of the 14th Court of Appeals.” See Isaac v. State,
167 S.W.3d 469 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d); Ford v. State,
38 S.W.3d 836, 842–45 & n.7 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d).
But the trial court did not rule on Williams’s request. At the formal charge
conference, the trial court asked whether either party objected to the proposed jury
charge, which did not include an instruction on a lesser-included offense. In
response, the following exchange occurred between the trial court and Williams’s
attorney.
Defense Counsel: We would at this time request the lesser-
included offense of deadly conduct
misdemeanor a third-degree felony level.
Trial court: And just so that we’re clear, we did have a
conversation off the record just informally
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discussing whether or not, first, the felony
offense of deadly conduct is, in fact, a
lesser-included offense of the charged
offense of aggravated assault of a public
servant. And for, I guess, purposes of the
record, I have had an opportunity to review
several cases that were submitted by both
sides. I believe the Defense submitted two
cases earlier Isaac v. State, which is cited at
167 S.W.3d 469 and also Ford v. State,
which is cited at 38 S.W.3d 836. Is there
anything that you want me to discuss on the
record, Mr. Bynum, regarding those two
cases?
Defense Counsel: There’s not, Judge.
Trial Court: Do you, based on your review of those
cases, could you, I guess, establish for the
Court why you believe felony deadly
conduct is a lesser, felony deadly conduct
under Section 22.05, I assume it would be
(b)(1) is a lesser-included offense of
aggravated assault of a public servant?
Defense Counsel: Judge, our position is going to be pretty, you
know, threadbare in the sense that we just
believe that the elements line up that there
are additional elements and that the
differences are not enough to deny the
Defendant an opportunity to be assessed at
the lower punishment levels is all.
Trial Court: And just looking at, actually looking at the
indictment, it appears that the Defendant has
been charged with using and exhibiting a
deadly weapon. So it alleges he unlawfully,
intentionally and knowingly threatened with
imminent bodily injury the complaining
witness, while the complaining witness was
4
lawfully discharging an official duty by
using and exhibiting a deadly weapon,
namely, a firearm, knowing the Complainant
was a public servant. And what’s the State’s
position?
In response, the State relied on Schreyer v. State, No. 05–03–01127–CR,
2005 WL 1793193 (Tex. App.—Dallas 2005, pet. ref’d) to support its contention
that the third-degree felony offense of deadly conduct was not a lesser-included
offense of aggravated assault of a public servant as charged. Compare TEX. PENAL
CODE ANN. § 22.05(b)(1), (e) (West 2011) (defining third-degree offense of deadly
conduct), with TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011) (defining
aggravated assault of public servant); see Schreyer, 2005 WL 1793193, at *7–8
(distinguishing aggravated assault from felony deadly conduct and concluding that
“the statutory elements of deadly conduct would not necessarily be established by
proof of the same or less than all the facts required to establish the commission of
aggravated assault of a public servant as charged.”) (citations omitted).
The trial court ruled that the third-degree felony offense of deadly conduct is
not a lesser-included offense of aggravated assault of a public servant. The trial
court did not, however, rule on whether the misdemeanor offense of deadly
conduct was a lesser-included offense. Neither offense was included in the jury
charge. The jury found Williams guilty of aggravated assault of public servant.
5
Before any evidence was offered in the punishment phase, Williams
objected to the admissibility of a prior aggravated robbery conviction. But the trial
court did not rule on his objection and instead instructed Williams to object at “an
appropriate time.” Williams agreed to wait to object until the State offered the
objectionable evidence. But when the State offered witness testimony regarding
that offense, Williams did not object. The jury assessed punishment at 68 years’
confinement.
Williams timely appealed.
Jury Instruction
In his first issue, Williams contends that the trial court erred by not charging
the jury on the lesser-included misdemeanor offense of deadly conduct. The State
acknowledges that Williams orally requested an instruction regarding the possible
inclusion of the third-degree felony offense of deadly conduct but contends that
Williams did not make a “clear and specific” request for an instruction on
misdemeanor deadly conduct or “present [a] proposed instruction in writing, or
dictate it into the record.” Accordingly, the State contends that Williams waived
his right to raise the issue on appeal.
A. Standard of review
The Texas Code of Criminal Procedure states that “in a prosecution for an
offense with lesser included offenses, the jury may find the defendant not guilty of
6
the greater offense, but guilty of any lesser included offense.” TEX. CODE CRIM.
PROC. ANN. art. 37.08 (West 2006). A lesser-included offense is one that
(1) is established by proof of the same or less than all the facts
required to establish the commission of the offense charged;
(2) differs from the offense charged only in the respect that a less
serious injury or risk of injury to the same person, property, or
public interest suffices to establish its commission;
(3) differs from the offense charged only in the respect that a less
culpable mental state suffices to establish its commission; or
(4) consists of an attempt to commit the offense charged or an
otherwise included offense.
Id. art. 37.09 (West 2006).
A trial court has a duty and responsibility to instruct the jury on “the law
applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007)
Lesser-included offenses, however, are not considered law applicable to the case;
they are defensive issues, which “frequently depend upon trial strategy and
tactics.” Tolbert v. State, 306 S.W.3d 776, 780 (Tex. Crim. App. 2010) (citing
Delgado v. State, 235 S.W.3d 244, 249–50 (Tex. Crim. App. 2007)). A trial court
has a duty to instruct the jury on lesser-included offenses only if a party has made
the proper request. See Tolbert, 306 S.W.3d at 779–80 (noting that trial courts are
“not statutorily required to sua sponte instruct” jury on lesser-included offenses);
cf. Ford, 38 S.W.3d at 840 (stating trial court may sua sponte instruct jury on
lesser-included offenses, but is not statutorily required to do so).
7
We review a trial court’s decision not to include a requested instruction on a
lesser-included offense for an abuse of discretion. Wesbrook v. State, 29 S.W.3d
103, 122 (Tex. Crim. App. 2000). We must uphold a trial court’s judgment unless
it lies outside of the zone of reasonable disagreement. Casey v. State, 215 S.W.3d
870, 879 (Tex. Crim. App. 2007).
B. Waiver
We first address the State’s contention that Williams waived his right to
complain on appeal that the jury was not instructed on the lesser-included offense
of misdemeanor deadly conduct.
The Texas Code of Criminal Procedure states that defendants may preserve
jury charge error by either (1) objecting to an error in the jury charge and obtaining
a ruling on the objection or (2) requesting a special instruction in the charge either
in writing or on the record. See TEX. CODE CRIM. PROC. ANN. art. 36.14 (West
2007); Id. art. 36.15 (West 2006).
A defendant preserves error under article 36.15 if he has requested special
instructions in the charge and the court denies incorporation of the requested
instruction or modifies the charge without responding to a pending request. See
Frank v. State, 688 S.W.2d 863 (Tex. Crim. App. 1985) (holding presentation of
special requested instruction and trial court’s subsequent denial of requested
8
instruction were sufficient to preserve error under 36.15); Ford, 38 S.W.3d at 841
(same).
To preserve error under section 36.15, the moving party must state the legal
basis for the objection or request with sufficient specificity to draw the court’s
attention to the complaint the defendant raises on appeal. See TEX. R. APP. P. 33.1
(stating that to preserve record party must show that “complaint was made by a
timely request, objection, or motion . . . with sufficient specificity to make the trial
court aware of the complaint”); TEX. CODE CRIM. PROC. ANN. art. 36.15; see Starks
v. State, 127 S.W.3d 127, 133 (Tex. App.—Houston [1st Dist.] 2003, pet. ref’d)
(citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990), and Little v.
State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988)). An objection is sufficient if
the record indicates that the trial judge understood the matters about which
appellant complains on appeal. Chapman v. State, 921 S.W.2d 694, 695 (Tex.
Crim. App. 1996) (holding requested charge need not be “in perfect form”);
Carmen v. State, 276 S.W.3d 538, 541 (Tex. App.—Houston [1st Dist.] 2008, pet.
ref’d) (“‘Magic words’ are not required; a complaint will be preserved if the
substance of the complaint is conveyed to the trial judge.” (quoting Bennett v.
State, 235 S.W.3d 241, 243 (Tex. Crim. App. 2007))).
When a statute states more than one way in which an offense may be
committed, “[a]n allegation that an offense has been committed in one way may
9
include a lesser offense, while an allegation that an offense [has been] committed
in another way would not include the lesser offense.” Bell v. State, 693 S.W.2d
434, 436 & n.3 (Tex. Crim. App. 1985) (citing Martinez v. State, 599 S.W.2d 622
(Tex. Crim. App. 1980)); see also Ford, 38 S.W.3d at 845 & n.7 (distinguishing
cases holding that deadly conduct by threat is lesser-included offense of aggravated
assault and concluding that “the offense of deadly conduct could be established by
the same or less proof than that needed to establish aggravated assault by causing
bodily injury.”). Because a greater offense and a lesser offense may be committed
in more than one way, reviewing courts must analyze each case to determine
whether the lesser offense may be proved by the evidence. Bell, 693 S.W.2d at
436.
Williams argues that he preserved error because he “specifically requested
instructions on the lesser-included charges of misdemeanor and felony” deadly
conduct. 2 Specifically, Williams argues that the trial court should have instructed
the jury on the lesser-included offense of misdemeanor deadly conduct. Williams
does not contend that he presented the trial court with a written proposed special
instruction, or that he dictated a proposed instruction into the record. Accordingly,
2
Williams concedes that the trial court correctly determined that third-degree felony
deadly conduct is not a lesser-included offense of aggravated assault of a public
servant.
10
we confine our analysis to whether Williams preserved error by objecting to the
proposed charge. See TEX. CODE CRIM. PROC. ANN. art. 36.15.
In raising his objection to the proposed jury instruction, Williams did not
clearly request an instruction regarding the misdemeanor offense of deadly
conduct. The colloquy between the trial court and both parties indicates that the
trial court appeared to understand that Williams had requested only an instruction
on the lesser-included offense of third-degree felony deadly conduct. This is
evidenced by the trial court’s explicit reference to case law and the elements of that
offense. See TEX. PENAL CODE ANN. § 22.05(b)(1), (e) (defining third-degree
felony offense of deadly conduct). Williams did not inform the court that he was
referring to two separate lesser-included offenses—he used the word “offense” in
the singular. The trial court responded by referring three times to only felony
deadly conduct, without ever mentioning misdemeanor conduct or referring to
section 22.05(a). See TEX. PENAL CODE ANN. § 22.05(a) (defining misdemeanor
offense of deadly conduct). Save Williams’s one reference to the word
“misdemeanor,” when requesting an instruction on “deadly conduct misdemeanor
a third-degree felony level” the record does not show that Williams made any
attempt to specifically request an instruction on 22.05(a) misdemeanor deadly
conduct as a lesser-included offense. See TEX. PENAL CODE ANN. § 22.05(a).
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Lastly, when the trial court asked Williams whether there was “[a]nything further
on the requested instruction from the defense?” Williams twice responded “no.” 3
We conclude that Williams failed to object to the absence of an instruction
on misdemeanor deadly conduct and, therefore, failed to preserve error on appeal.
See TEX. CODE CRIM. PROC. ANN. art. 36.15; see Vasquez v. State, 919 S.W.2d
433, 435 (Tex. Crim. App. 1996).
Accordingly, we overrule Williams’s first issue.
Extraneous Offense
In his second issue, Williams contends that the trial court erred by admitting
evidence of a prior conviction for aggravated robbery “in the absence [of] any
proffer by the State or threshold inquiry by the trial court.” The State responds that
Williams failed to preserve error regarding the adequacy of the State’s proffer and
the trial court’s ruling that the evidence was admissible.
3
Furthermore, even assuming the evidence would have supported an instruction on
a lesser-included offense, the trial court did not have a sua sponte duty to instruct
the jury on that offense if the defendant failed to request an instruction or
objection to the omission of the instruction. See Delgado v. State, 235 S.W.3d 244,
249–50 (Tex. Crim. App. 2007) (holding trial court does not have “sua sponte
duty to instruct the jury on all potential defensive issues, lesser-included offenses,
or evidentiary issues. These are issues that frequently depend upon trial strategy
and tactics.”); Posey v. State, 966 S.W.2d 57, 62 (Tex. Crim. App. 1998) (holding
that defensive issue is not law applicable to case for purposes of Texas Code of
Criminal Procedure article 36.14) (citation omitted).
12
A. Standard of review
We review a trial court’s evidentiary rulings for an abuse of discretion.
Oprean v. State, 201 S.W.3d 724, 726 (Tex. Crim. App. 2006); Walker v. State,
321 S.W.3d 18, 22 (Tex. App.—Houston [1st Dist.] 2009, pet. dism’d). We will
uphold a trial court’s decision unless it falls outside of the “zone of reasonable
disagreement.” Oprean, 201 S.W.3d at 726; Walker, 321 S.W.3d at 22. And we
will uphold a trial court’s evidentiary ruling if it is correct on any theory of law
applicable to that ruling. De La Paz v. State, 279 S.W.3d 336, 344 (Tex. Crim.
App. 2009).
B. Waiver
Article 37.07 of the Texas Code of Criminal Procedure establishes the
admissibility of evidence during the punishment phase of trial. See TEX. CODE
CRIM. PROC. ANN. art. 37.07 (West Supp. 2013); Henderson v. State, 29 S.W.3d
616, 626 (Tex. App.—Houston [1st Dist.] 2000, pet. ref’d). Subsection 3 of Article
37.07 provides that the State may offer “evidence of an extraneous crime or bad act
that is shown beyond a reasonable doubt by evidence to have been committed by
the defendant or for which he could be held criminally responsible, regardless of
whether he has previously been charged with or finally convicted of the crime or
act.” TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1). This evidence is, however,
subject to exclusion under Texas Rule of Evidence 403. Lamb v. State, 186 S.W.3d
13
136, 141–43 (Tex. App.—Houston [1st Dist.] 2005, no pet.) (citing TEX. R. EVID.
403). Rule 403 states that relevant evidence may be excluded when the probative
value is “substantially outweighed by the danger of unfair prejudice, confusion of
the issues, or misleading the jury . . . .” TEX. R. EVID. 403.
If a party objects to the admissibility of evidence under Rule 403, the trial
court must balance the probative value of the evidence against its possible
prejudicial effect before ruling on its admissibility. Montgomery v. State, 810
S.W.2d 372, 388–90 (Tex. Crim. App. 1990); Burke v. State, 371 S.W.3d 252,
257–58 (Tex. App.—Houston [1st Dist.] 2011, pet. ref’d) (weighing probative
value against potential prejudice of evidence and upholding admissibility of
extraneous act). To preserve error, the complaining party must state the legal basis
for the objection with sufficient specificity to draw the court’s attention to the
complaint the defendant raises on appeal. See TEX. R. APP. P. 33.1; Starks, 127
S.W.3d at 133 (citing Rezac v. State, 782 S.W.2d 869, 870 (Tex. Crim. App. 1990),
and Little v. State, 758 S.W.2d 551, 564 (Tex. Crim. App. 1988)).
We first address Williams’s complaint that trial court failed to conduct a
Rule 403 balancing analysis before admitting evidence of Williams’s prior
aggravated robbery conviction. At the beginning of the punishment hearing, before
any testimony was offered, Williams conceded that “the facts of the aggravated
robbery [conviction] were admissible.” But Williams made a motion in limine
14
asking that the State not be permitted to offer any evidence that the complainant in
the aggravated robbery was employed as a police officer. See TEX. R. EVID. 403.
The trial court stated that it would permit the State to elicit testimony that the
complainant was an off-duty police officer at the time of the offense. Williams
responded, arguing that the probative value of the evidence was outweighed by its
potential prejudicial effect and requested that the trial court issue a limiting
instruction to the jury “anytime that it’s mentioned that [the complainant is] a
police officer” that “they may not consider the extraneous offense or bad act of
aggravated assault of a police officer.” The trial court requested that defense
counsel tender the proposed limiting instruction to the court and told Williams that
his objection and requested limiting instruction “require that you ask for it an
appropriate time.” The trial court did not rule on Williams’s Rule 403 objection,
nor did it grant his motion for a limiting instruction. Rather than pursuing a ruling,
Williams agreed that he could “wait until any offense conduct that could construe
that particular extraneous bad act” was offered into evidence.
Throughout the punishment hearing, Williams did not object to any evidence
offered regarding the aggravated robbery conviction. By failing to object to any of
the evidence offered regarding the previous aggravated robbery conviction,
Williams waived his right to raise the issue on appeal. See TEX. R. APP. P. 33.1.
15
Williams also contends that the trial court failed to conduct a “threshold
analysis” of the admissibility of evidence of his prior aggravated robbery
conviction. Williams, however, did not object on such grounds during the
punishment hearing. See TEX. CODE CRIM. PROC. ANN. art. 37.07 § 3(a)(1)
(requiring State to prove “beyond a reasonable doubt” that defendant committed
offense or act sought to be admitted); see Wilson v. State, 71 S.W.3d 346, 349
(Tex. Crim. App. 2002) (“[T]he point of error on appeal must comport with the
objection made at trial.”); see also Broxton v. State, 909 S.W.2d 912, 918 (Tex.
Crim. App. 1995) (“An objection stating one legal theory may not be used to
support a different legal theory on appeal.” (citing Johnson v. State, 803 S.W.2d
272, 292 (Tex. Crim. App. 1990))). Accordingly, Williams waived his right to
raise the issue on appeal.
Because Williams waived his right to challenge the admissibility of his prior
aggravated robbery conviction, we conclude that the trial court did not abuse its
discretion in admitting that evidence.
We overrule Williams’s second issue.
Conclusion
Having overruled both of Williams’s issues, we affirm.
16
Harvey Brown
Justice
Panel consists of Chief Justice Radack and Justices Higley and Brown.
Do not publish. TEX. R. APP. P. 47.2(b).
17