No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS JAMES RALPH JOHNSON, APPELLANT THE STATE OF TEXAS, APPELLEE

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1 The State requests oral argument only if Appellant argues No CR IN THE COURT OF APPEALS FOR THE FIFTH DISTRICT OF TEXAS AT DALLAS JAMES RALPH JOHNSON, APPELLANT V. THE STATE OF TEXAS, APPELLEE On appeal from the 265 th Judicial District Court of Dallas County, Texas In Cause No. F VR STATE S BRIEF Counsel of Record: Craig Watkins Christine Womble Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Boulevard, LB-19 Dallas, Texas (214) (214) fax Attorneys for the State of Texas

2 TABLE OF CONTENTS Table of Contents... ii Index of Authorities... iii Statement of the case... 1 Statement of facts Summary of the argument... 8 Argument... 8 State's Response to Sole Issue:... 8 APPELLANT WAS NOT EGREGIOUSLY HARMED. PRAYER CERTIFICATE OF SERVICE ii

3 INDEX OF AUTHORITIES Cases Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1985)... 10, 11 Cole v. State, 46 S.W.3d 427 (Tex. App. Fort Worth 2001, pet. ref d) Hutch v. State, 922 S.W.2d 166 (Tex. Crim. App. 1996) Ngo v. State, 175 S.W.3d 738 (Tex. Crim. App. 2005) Patrick v. State, 906 S.W.2d 481 (Tex. Crim. App. 1995)... 10, 11 Statutes TEX. PENAL CODE ANN (a-c) TEX. PENAL CODE ANN (a)(1) TEX. PENAL CODE ANN (a)(2) iii

4 TO THE HONORABLE COURT OF APPEALS: The State of Texas submits this brief in response to the brief of Appellant, James Ralph Johnson. STATEMENT OF THE CASE Appellant pled not guilty to aggravated assault with a deadly weapon. (CR:2-3; RR4:3). The jury found Appellant guilty and the trial court sentenced him to twenty-five (25) years confinement in the Institutional Division of the Texas Department of Criminal Justice. (CR:37, 50-52; RR6:30; RR7:14). STATEMENT OF FACTS The State s Case At about noon on March 25, 2008, Pablo Carrizales (the complainant) went to visit with Willie Mills and Laura Jenkins ( Cisco ) at the Fitzhugh Apartments. (RR4:5-6, 13:RR5:16). Before he arrived at the apartment, however, he stopped to buy some beer for himself and Willie at the Quickway. (RR4:13-14). At the Quickway, Pablo saw Appellant. (RR4:14). Appellant asked Pablo where s my money? (RR4:14). Pablo told him that he did not owe him any money and left the store. (RR4:14). Pablo testified that he saw a little shiny deal, which looked like a knife, in Appellant s pocket. (RR4:15). Later, at about five o clock, Pablo and Willie returned to the Quickway to buy some more beer. (RR4:16). When Pablo and Willie were exiting the store, a tow truck pulled up and Appellant jumped out of the passenger seat. (RR4:18). Again, Appellant demanded that Pablo pay him his money. (RR4:18). If not, Appellant would get 1

5 [him]. (RR4:18). He showed Pablo the knife, the box cutter. (RR4:18-19). Pablo and Willie returned to Willie s apartment. (RR4:21). Appellant followed them. (RR4:21). Inside the apartment, Pablo allowed Appellant to use his cell phone. 1 (RR4:22-23; RR5:23, 85). After making a call, Appellant refused to return Pablo s cell phone. (RR4:23). Appellant told Pablo that Appellant s cousin was on his way and that Pablo owed them money. (RR4:24). Willie asked Appellant to leave. (RR4:24; RR5:72, 86-87). Appellant continued to demand his money. (RR4:25). Willie asked Pablo whether Pablo had any money to give Appellant so that Appellant would leave. (RR4:24). Pablo gave Appellant the $3.00 that he had on his person. (RR4:26; RR5:32). Appellant believed that Pablo could give him more money; he pointed out that Pablo had an ATM card in his wallet. (RR4:26). After Appellant left, he returned and started pounding on Willie s door, demanding that Pablo come outside. (RR4:26). Cisco stepped outside the apartment to call the police. (RR4:27). A few minutes later, Willie stepped outside to check on Cisco. (RR4:29). When Willie was coming back inside, Pablo stepped outside. (RR4:29). At that point, Appellant punched Pablo. (RR4:29; RR5:37). Pablo went inside to get a stick because he saw Appellant reaching for his box cutter. (RR4:29-30). Pablo returned outside with a two-foot stick. 2 (RR4:30). Pablo and Appellant started walking. (RR4:30-31). Appellant started swinging the box cutter at Pablo and 1 Appellant returned Pablo s phone about an hour later. (RR4:24). 2 Pablo testified that the stick was just like one of those sticks you use for the garage sale signs[.] (RR4:29). 2

6 Pablo started swinging the stick at Appellant. (RR4:31; RR5:26). Pablo hit Appellant with the stick, causing him to fall on top of a car. (RR4:31). Pablo hit Appellant twice in the head. (RR4:32; RR5:30). Appellant swung two or three times at Pablo with the box cutter. (RR4:32). When Pablo hit Appellant the second time, Appellant dropped the box cutter. (RR4:33). While Appellant tried to locate his weapon, Pablo went back through the breezeway, threw away his stick, and locked the gate. (RR4:33). Appellant retrieved his box cutter and demanded that Pablo open the gate. (RR4:33-34). Pablo tried to go back inside the apartment, but the door was locked. (RR4:35). He went back to the gate to tell Willie that the apartment was locked. (RR4:35). At that time, Appellant came around the back. (RR4:35). Appellant got [Pablo] the first time in the back of [his] head. (RR4:36). Pablo and Appellant started scruffling in the breezeway. (RR4:37). Appellant cut Pablo multiple times. (RR4:38-39; SX #44-54). Pablo was able to get away, but Appellant pinned him underneath some stairs and continued to cut him. (RR4:42-43). Pablo had nothing with which to defend himself but his fists. (RR4:43). Willie tried to push Pablo under the stairs, away from Appellant. (RR4:47). Then, as Pablo started to walk toward Cisco to get help, Appellant reappeared and slashed [Pablo] on [his] forehead[.] (RR4:48). At that point, the ambulance and police arrived and Appellant took off. (RR4:48). Three months later, Pablo saw Appellant. (RR4:61). Pablo was at Willie and Cisco s apartment, sitting outside drinking beers. (RR4:61). Appellant told Pablo that he was not mad at him, but that he had to do what he had to do. (RR4:61). Appellant told 3

7 Pablo that Pablo still owed him money. (RR4:61-62). Pablo walked to the Quickway and called the police. (RR4:62). Appellant was apprehended by the police. (RR4:62). Pablo testified that he did not owe Appellant any money. (RR4:20). He did not know Appellant. (RR4:20). He just said hi, bye, never sat and drink [sic] beer with [Appellant], nothing like that. (RR4:20). Laura Jenkins ( Cisco ) testified that on the night of the offense, when Appellant entered her apartment with Pablo and Willie, Appellant was complaining that Pablo owed him money because Appellant had given Pablo a ride. (RR5:44-45). Cisco was nervous because Appellant was saying that Pablo owed him money, but Pablo was saying that he did not owe Appellant any money. (RR5:45). Appellant told Cisco that Pablo owed him $ (RR5:46). Cisco testified that the argument continued to escalate and she told Willie to ask Appellant to leave. (RR5:47, 48-49). When Appellant finally left, he said that he was going to kick the door in. (RR5:49). He also said that he was not going anywhere until Pablo gave him his money. (RR5:49). Cisco decided to call the police. (RR5:50). She went outside to make the call because she was unable to get reception inside the apartment. (RR5:50). Willie and Pablo exited the apartment as well. (RR5:50-51). Cisco went around the front to make the call and wait for the police. (RR5:51). She could hear the men arguing. (RR5:51, 64). Less than ten minutes later, Cisco saw Appellant swing at Pablo and Pablo hit Appellant with a stick. (RR5:52, 64). Appellant swung at Pablo again and Pablo hit Appellant again. (RR5:52). Appellant fell back against a car and dropped something. (RR5:52). After feeling on the ground Appellant tried to hit Pablo again, but Pablo 4

8 closed the gate and locked it. (RR5:52). Cisco looked down the street for the police. (RR5:53). Then, she saw Pablo with a towel around his head and blood coming out everywhere. (RR5:53). Cisco denied seeing Pablo get cut. (RR5:54). Willie Mills testified that when Appellant was in his apartment on the night of the offense, he tried to prevent Appellant and Pablo from arguing and fighting. (RR5:72). According to Willie, at some point Appellant left the apartment, but returned and bammed on the door, demanding that it be opened or he would knock it down. (RR5:72-73). When Cisco went outside to call the police, Willie saw Appellant and Pablo start fighting. (RR5:73). Willie thought that one of them swung and hit the other with something. (RR5:73). He did not really recollect on that. (RR5:73). He denied seeing Appellant hit Pablo. (RR5:73). He denied seeing Pablo with a stick. (RR5:92). At one point, Willie heard a gate slam closed. (RR5:74). He went around to look and saw that Pablo had closed and locked the gate and that Appellant was demanding that it be opened. (RR5:75). Appellant came around back toward Pablo. (RR5:75). Appellant was swinging and like he s getting ready to fight or whatever[.] (RR5:76). Pablo no longer had the stick; it was on the ground near the trash. (RR5:75). Appellant was the one doing the swinging. (RR5:77). Willie did not see anything in Appellant s hand. (RR5:77). Pablo held up his hands to block Appellant; Pablo was trying to get away. (RR5:78, 92). Pablo had his back to Appellant. (RR5:79). Willie saw blood everywhere. (RR5:79). Dallas Police Officer Christopher Wood testified that on the night of the offense, he was dispatched to Willie s apartment in response to a stabbing call. (RR5:96). 5

9 Because Pablo was being treated in the ambulance, Officer Wood mainly spoke with Willie and Cisco. (RR5:97). Officer Wood prepared the offense report. (RR5:99, 101). He testified that this was one of the more graphic cuttings [he has] been to. (RR5:100). Pablo was bleeding real bad. (RR5:100). Detective Richard Lopez testified that he conducted the follow-up investigation regarding the instant offense. (RR5:107). Detective Burbulys testified that he interrogated Appellant when Appellant was arrested in June of (RR5:117-18; SX #60, 60-A). Appellant s Case Corine Coleman, Appellant s aunt, testified that toward the end of March 2008, Appellant came home with some injuries to his person. (RR5:130). Appellant told her that a Mexican had hit him[.] (RR5:131). Alice Jackson testified that she was at home on the night Appellant came home injured. (RR5:136). He testified that he looked beat up. (RR5:136). Appellant had cuts and bruises to his face and arm. (RR5:137). Appellant told her that he had gotten into a fight with a Spanish guy over money that he was owed. (RR5:137-38). Donnie Coleman, Appellant s cousin, testified that on the night of the instant offense, Appellant came home looking pretty rugged. (RR5:143). Appellant was bleeding. (RR5:143). He told Donnie that he had been hit with a stick. (RR5:144). Appellant told Donnie that he got a little knife out and started swinging. (RR5:144). Appellant testified that he had known Pablo for about a month-and-a-half prior to the date of the instant offense. (RR5:158, 161). They met at the Fitzhugh Apartments. 6

10 (RR5:159). While at the 7-Eleven one night, Red asked Appellant whether Appellant could give Pablo a ride to Garland. (RR5:161-62). Pablo offered $20.00 for the ride. (RR5:163). Derrick Coleman, Appellant s cousin, accepted Pablo s offer and drove Pablo to Garland. (RR5:163). For some reason, Pablo only had $7.00 to give Derrick. (RR5:164). Appellant vouched for Pablo, telling Derrick that Pablo was good for it. (RR5:164). Apparently, Pablo never paid the balance of the money owed for the ride. On the day of the instant offense, at about 5:30 or 6 o clock p.m., Appellant headed to the apartments and stopped at the Quickway. (RR5:166). There, he saw Pablo and asked about his money. (RR5:167). He followed Pablo to Willie s apartment. (RR5:167). Willie invited him inside and Pablo offered him a beer. (RR5:168). Appellant stayed for an hour and a half to two hours. (RR5:168; RR6:5). According to Appellant, he used Pablo s phone to call Derrick. (RR5:169). Pablo spoke to Derrick and it was understood that [Pablo] was going to give [him] the money for Derrick. (RR5:169). Afterward, the men continued to sit and drink beer. (RR5:170). Pablo kept dragging [Appellant] on about the money. (RR5:170). Willie asked Appellant to leave. (RR5:171; RR6:5). Outside, Appellant mingled with others. (RR5:172). He saw Pablo and asked about his money. (RR5:172). Pablo told Appellant that he would pay him the next day. (RR5:173). Appellant told Pablo to call Derrick and tell him that. (RR5:173). Then, Pablo hit Appellant with a stick. (RR5:175). Pablo hit Appellant again with the stick. (RR5:176). Pablo continued to hit Appellant with the stick. (RR5:177). Appellant 7

11 pulled out a knife and started swinging it at Pablo. (RR5:178). At some point, Appellant was able to leave and go home. (RR5:182). Appellant did not deny cutting Pablo, but claimed that he did so only in selfdefense. (RR5:183-84). He admitted getting angrier and angrier when Pablo would not pay him. (RR6:4). SUMMARY OF THE ARGUMENT Although the trial court failed to limit the definitions of the applicable mental states in the abstract portion of the jury charge, the application paragraph properly limited the mental states to the result of Appellant s conduct. Appellant was not egregiously harmed under Almanza. ARGUMENT STATE S RESPONSE TO SOLE ISSUE: APPELLANT WAS NOT EGREGIOUSLY HARMED. Appellant contends that the trial court erred in failing to properly instruct the jury regarding the applicable culpable mental states. He contends that, as a result of this error, he suffered egregious harm. Appellant s contentions lack merit and should be overruled. Pertinent Facts The indictment in the instant cause provides, in pertinent part, that, on or about March 25, 2008, Appellant did: (CR:2-3). unlawfully then and there intentionally, knowingly and recklessly cause bodily injury to PABLO CARRIZALES, hereinafter called complainant, by CUTTING AND BY STABBING COMPLAINANT WITH A BOX CUTTER, and said defendant did use and exhibit a deadly weapon, to-wit: a BOX CUTTER, during the commission of the assault. 8

12 The abstract portion of the trial court s charge to the jury during the guilt/innocence portion of Appellant s trial provides, in pertinent part, as follows: (CR:39). (CR:40). A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor s standpoint. A person acts intentionally, or with intent, with respect to the nature of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result. A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct 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. The application portion of the jury charge provides, in pertinent part, as follows: Now, if you find from the evidence beyond a reasonable doubt that on or about the 25 th day of March, 2008, in Dallas County, Texas, the defendant, James Ralph Johnson, did unlawfully then and there intentionally, knowingly or recklessly cause bodily injury to another, namely, Pablo Carrizales, hereinafter called complainant, by cutting or by stabbing complainant with a box cutter, and said defendant did use or exhibit a deadly weapon, to-wit: a box cutter during the commission of the assault, then you will find the defendant guilty as charged. 9

13 Applicable Law Aggravated Assault A person commits assault where he intentionally, knowingly, or recklessly causes bodily injury to another. See TEX. PENAL CODE ANN (a)(1). A person commits aggravated assault where he intentionally, knowingly, or recklessly causes bodily injury to another and he uses or exhibits a deadly weapon during the commission of the assault. See TEX. PENAL CODE ANN (a)(2). Aggravated assault is a result-oriented offense. Cole v. State, 46 S.W.3d 427, 433 (Tex. App. Fort Worth 2001, pet. ref d). Jury Charge Where there is no objection to the jury charge, an appellate court will reverse only if the record shows that the error was so egregiously harmful that the defendant was denied a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). The actual degree of harm must be evaluated in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. See id. Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory. Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005) (citing Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)). The Court of Criminal Appeals has held that when the application paragraph correctly instructs the jury, an error in the abstract instructions is not egregious. See Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App. 1995). 10

14 Application of Law to Facts The abstract portion of the jury charge contains the definitions of intentionally, knowingly, and recklessly, as defined in TEX. PENAL CODE ANN (a-c). (CR:39). This portion of the jury charge is not limited to the result of Appellant s conduct. The application portion of the jury charge, however, is properly limited. (CR:40). Indeed, Appellant concedes that this portion of the charge correctly instructed the jury on the law. (See Appellant s Brief p. 10). At trial, Appellant did not raise any objections to the jury charge. Accordingly, he is entitled to a reversal only if the record shows that he was egregiously harmed. See Almanza, 686 S.W.2d at 171. Any alleged error in the jury charge is harmless under Almanza: The jury charge As previously stated, even though the abstract portion of the charge is not properly limited to the result of Appellant s conduct, the application portion of the charge is properly limited. Because the application portion is correct, Appellant was not egregiously harmed. See Patrick, 906 S.W.2d at 493. Appellant complains that the emphasis of the self-defense application paragraph is clearly on Appellant s conduct. (See Appellant s Brief p. 10). He fails, however, to explain this statement or explain how this paragraph renders any alleged error egregiously harmful. Notably, Appellant does not complain that this portion of the jury charge is incorrect. 11

15 The state of the evidence The State presented substantial evidence showing that Appellant injured Pablo with a box cutter. The complainant s testimony was corroborated by Willie and Cisco, two people who witnessed the events leading up to the fight and saw portions of the fight. The State also showed the jury photographs of Pablo s injuries. The jury could have reasonably inferred that Appellant intended to cause Pablo bodily injury when he cut Pablo with the box cutter. Appellant testified that he cut Pablo, but that he did so only in self-defense. Apparently, the jury did not believe Appellant s version of the events that transpired on the day of the instant offense. The argument of counsel During the first portion of the State s closing argument, the State properly argued that the jury need only decide whether Appellant intended to cause Pablo bodily injury or whether he was merely acting in self-defense. The prosecutor argued as follows: And there s really no doubt in this case that the defendant did cause bodily injuries to Pablo Carrizales and that he did so, and he used and exhibited a deadly weapon during the course of that act. The only issue really before you is whether or not the defendant was acting in reasonable self-defense when he did it. That s the only issue you-all have to decide. We re not arguing about whether it was this defendant, we re not arguing about whether it was in Dallas County or what the date was, or whether it was a box cutter or whether that was an assault causing him bodily injury. Was it self defense? (RR6:18). The prosecutor went on to highlight the facts showing that Appellant intended to cause Pablo s injuries and that he was not acting in self-defense. 12

16 Appellant complains that the State s closing argument focused too much on Appellant s conduct and whether it was reasonable. He fails to state why this argument is incorrect. First, whether Appellant was acting in self-defense was the only contested issue. Second, by arguing to the jury that Appellant did not injure Pablo while acting in self-defense, the State was arguing that Appellant intended the result of his conduct he intended to cause Pablo bodily injury by cutting him with the box cutter. The prosecutor s argument continued as follows: The defendant came up behind [Pablo], cornered him under those stairs and cut him because he was mad, not because he was in any reasonable apprehension of his own safety at that point. (RR6:20). Here, the prosecutor was arguing that Appellant was mad and that he cornered Pablo so that he could cut him with the box cutter. The prosecutor was arguing that Appellant intended to injure Pablo. During the State s final argument, the prosecutor continued to argue that Appellant intended to cause Pablo bodily injury. For example, the prosecutor argued as follows: This defendant put Pablo Carrizales through a saw mill, that s what he did. That s the truth in this case. The truth in this case is that Pablo s back was turned and [Pablo] didn t have anything in his hands when he was being brutalized with this, or the other box cutter which looks just like it, that this defendant carries around to scrap metal, to cut copper wiring, to cut other types of metal and rubber. Heavy duty work. [Appellant] knows what [the box cutter] is capable of doing. He knew what it was when he had it in his pocket. He threatened Pablo with it all day that day. He couldn t get the idea out of his head. He wanted his money. He was Jonesing for his money. He told you why he was over there. He told you he just wanted his money, he was going to get it. He wasn t going to leave until he got his money. And you saw it for an hour and a half. You heard from an hour and a half, hour, hour and a half he was in Willie and Cisco s apartment and they were 13

17 trying to reason with him but he couldn t be reasoned. He wasn t going to be reasoned with. He was going to get his pound of flesh. Either he was going to get his money or he was going to get his pound of flesh. And he got his pound of flesh. (RR6:29). The State s properly argued that Appellant did not cause Pablo s injuries while acting in self-defense. Rather, Appellant intended to cause Pablo s bodily injuries. Based on the foregoing, it is clear that any alleged error did not cause Appellant egregious harm. Accordingly, he is not entitled to a reversal. Appellant s sole issue should be overruled. PRAYER The State prays that this Honorable Court will affirm the judgment of the trial court. Respectfully submitted, Craig Watkins Christine Womble Criminal District Attorney Assistant District Attorney Dallas County, Texas State Bar No Frank Crowley Courts Building 133 N. Riverfront Blvd., LB-19 Dallas, Texas (214) (214) fax 14

18 CERTIFICATE OF SERVICE I hereby certify that a true copy of the foregoing brief was served on Assistant Public Defender Kathleen A. Walsh, attorney for Appellant, 133 N. Riverfront Blvd. LB- 2, Dallas, Texas, 75207, by hand delivery, on March 1, Christine Womble 15