Banks v. State

• Decision Date: 27 November 1991
• Docket Number: No. 04-90-00285-CR,04-90-00285-CR
• Citation: 819 S.W.2d 676
• Parties: Arthur Lee BANKS, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

Page 676

819 S.W.2d 676

Arthur Lee BANKS, Appellant, v. The STATE of Texas, Appellee.

No. 04-90-00285-CR.

Court of Appeals of Texas San Antonio.

Nov. 27, 1991.

Discretionary Review Refused March 18, 1992.

Julie Pollock, Hitchings, Pollock & Bernard, San Antonio, for appellant.

Fred G. Rodriguez, Former Criminal Dist. Atty., Steven C. Hilbig, Criminal Dist. Atty., Barbara Hervey, Angela Moore, Asst. Criminal Dist. Attys., San Antonio, for appellee.

Before BIERY, GARCIA and ONION, ¹ JJ.

OPINION

ONION, Justice.

Appellant appeals his conviction for injury to a child. See TEX.PENAL CODE ANN. § 22.04(a)(4) (Vernon 1989). ² After the jury found the appellant guilty, the trial court, finding that the appellant had been previously convicted of a felony as alleged, assessed punishment at twenty (20) years' imprisonment.

Appellant advances five points of error. Arguing that injury to a child is a "specific result" offense, the appellant initially contends that the trial court erred in giving the jury a charge that failed to apply the culpable mental states to causing the prohibited results rather than merely engaging in the conduct. In connection with the same general subject matter, the appellant complains, in the next two points of error, that the error occurred when the prosecutor misstated the law during jury arguments, and that he was denied the effective assistance of trial counsel. In the fourth point of error, appellant urges that the trial court erred in denying his requested charge on the lesser included offense of recklessly causing injury to a child. In his fifth point of error, appellant argues that the trial court erred in allowing the prosecutor to introduce evidence of the effects of the alleged offense on the victim.

Fourteen-year-old Joseph Williams testified that on July 11, 1989, he lived with his mother, his sister, and the appellant, his mother's live-in boyfriend. Williams testified that on the morning in question, he and his six-year-old sister, Lakisha, had some difficulty. She left home and went to an aunt's house nearby. Appellant called Williams from the aunt's house and told him not to argue with Lakisha, and that he "was dead" when appellant got home. Williams related that he was hanging laundry in the yard when appellant hit him in the back of the head and knocked him to the ground; that appellant dragged him into the house while kicking him in the ribs and punching him in the face. Williams stated that appellant "busted" his head open with a wooden ashtray. Williams described how appellant licked blood from Williams' head and told Williams that he (appellant) was the devil. After appellant left the house, Williams called the aunt. He was taken to the hospital where he received fifteen stitches.

Appellant testified that he was at the aunt's house when Lakisha arrived, crying. She told of being physically abused by her older brother. Appellant admitted he called Williams on the phone but denied the language Williams had stated was used. Appellant testified that he found Williams in the living room, and that he admonished Williams about his conduct with his six-year-old sister. Appellant related that Williams got belligerent and told appellant that he did not have to listen to the appellant as the appellant was not his father. Appellant testified that Williams came at him with a clenched fist and attempted to strike him, and that he grabbed Williams to defend himself and to restrain Williams. He eventually hit Williams with his fist, "a natural reaction to block." Appellant repeatedly stated that he never intended to injure Williams but only intended to discipline him, "to tell him about his attitude."

Section 22.04(a)(4) of the Texas Penal Code, as amended in 1981, and under which appellant was prosecuted provides:

(a) A person commits an offense if he intentionally commits an offense with criminal negligence, by act or intentionally, knowingly or recklessly by omission, engages in conduct that causes to a child, elderly individual, or invalid individual:

(4) bodily injury.

Act of May 25, 1981, 67th Leg., R.S., ch. 604, § 1, 1981 TEX.GEN.LAWS 2397 (amended 1989) (current version at TEX.PENAL CODE ANN. § 22.04(a)(4) (Vernon Supp.1991)).

The indictment in pertinent part alleged that appellant on or about July 11, 1989:

did then and there knowingly and intentionally engage in conduct that caused bodily injury to Joseph Williams, a child who was fourteen (14) years of age or younger, by hitting the said Joseph Williams about the face and body with his hands; ...

Injury to a child is a result-oriented crime. Haggins v. State, 785 S.W.2d 827, 828 (Tex.Crim.App.1990); Alvarado v. State, 704 S.W.2d 36, 39 (Tex.Crim.App.1985); Beggs v. State, 597 S.W.2d 375, 377 (Tex.Crim.App. [Panel Op.] 1980); Samples v. State, 762 S.W.2d 751, 752 (Tex.App.--Fort Worth 1988, no pet.). Both Alvarado and Beggs hold that the statutory phrase "engage in conduct" is vestigial language, and that the focus of culpability is on the result of the conduct. Kelly v. State, 748 S.W.2d 236, 239 (Tex.Crim.App.1988) ³. "Both opinions emphasize that the mental state criminalized in the injury to a child statute is that state of mind which contemplates the prohibited result...." Haggins, 785 S.W.2d at 828. Thus, injury to a child is a "specific result" offense requiring a culpable mental state which relates not to the nature of the circumstances surrounding the charged conduct but to the result of the conduct. See Spang v. State, 781 S.W.2d 713, 715 (Tex.App.--Austin 1989, no pet.); Phillips v. State, 753 S.W.2d 813, 814 (Tex.App.--Austin 1988, pet. ref'd).

Appellant contends that the trial court in the instant case erred in failing to give sua sponte a jury charge that applied the culpable mental states of "intentionally and knowingly" to causing the prohibited result rather than merely engaging in the conduct. The State agrees that if the appellant had requested a charge limiting the culpable mental states to the prohibited result, or had timely objected to the charge given, he would have been entitled to the charge. Since appellant did not object to the charge, he must claim fundamental error and show egregious harm; that is, that he was denied a fair and impartial trial as a result of the error. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). In determining whether egregious harm occurred, the error should be viewed in light of the entire jury charge, the state of the evidence (including contested issues and the weight of probative evidence), the argument of counsel, and any other relevant information revealed by the record. Id.; Sandow v. State, 787 S.W.2d 588, 597 (Tex.App.--Austin 1990, pet. ref'd).

The jury was instructed in Paragraph I and III of the court's charge as follows:

I.

Our law provides that a person commits an offense if he intentionally, or knowingly by act or omission, engages in conduct that causes bodily injury to a child who is fourteen (14) years of age or younger.

III.

A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result 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.

In the application paragraph of the court's charge, the jury was instructed:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 11th day of July, A.D., 1989 in Bexar County, Texas, the defendant Arthur Lee Banks, did intentionally or knowingly engage in conduct that caused bodily injury to Joseph Williams, a child who was fourteen (14) years of age or younger, by hitting the said Joseph Williams about the face and body with his hands, then you will find the defendant guilty of intentionally or knowingly causing bodily injury to a child fourteen (14) years of age or younger.

Unless you so find beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will find the defendant not guilty of engaging in conduct that caused bodily injury to Joseph Williams.

Elsewhere in the jury instructions, the trial court told the jury that "you are bound to receive the law from the Court, which is herein given to you, and be governed thereby."

Two verdict forms were submitted with the charge. One was a "not guilty" form. The other form which was utilized by the jury read: "We, the Jury, find the defendant, Arthur Lee Banks, guilty of intentionally or knowingly engaging in conduct that caused bodily injury to Joseph Williams." No objection was made to the forms of verdict submitted.

During the State's closing argument, the prosecutor told the jury without objection:

The other thing is reading the charge. It is very important to read the charge, that is correct; especially when you look at the intent element.

The intent element goes to conduct, not to the intent to cause bodily injury. The injury is the result of a conduct.

Reviewing the jury charge as a whole, we observe that in the abstract or definitional portion of the charge, the trial court gave the full statutory definitions of intent and knowledge. See TEX.PENAL CODE ANN. § 6.03(a) and (b) (Vernon 1974). There was no attempt to limit the culpable mental states to the result of the offense of injury to a child.

In the application paragraph, the court also failed to limit the culpable mental states. In fact, the application paragraph authorized a conviction based solely on the finding that the appellant intentionally or knowingly engaged in conduct which happened to cause bodily injury to a child. A result-oriented offense cannot be based...