Bell v. State
| Decision Date | 21 December 2018 |
| Docket Number | NO. 14-18-00049-CR,NO. 14-18-00048-CR,14-18-00048-CR |
| Parties | Joshua Marquis BELL, Appellant v. The STATE of Texas, Appellee |
| Court | Texas Court of Appeals |
Whitney Kubik, Houston, TX, for Appellant.
Eric Kugler, Houston, TX, for Appellee.
Panel consists of Justices Donovan, Wise, and Jewell.
Appellant was on deferred adjudication community supervision (probation) for one count each of aggravated assault with a deadly weapon and aggravated promotion of prostitution. In two issues, appellant challenges the trial court’s revocation of probation. He contends that (1) the evidence was insufficient to support the trial court’s finding that appellant violated the conditions of probation, and (2) the trial court erred by considering the State’s closing argument about facts not in evidence. We affirm.
The State alleged that appellant violated conditions of his probation by failing to pay fees and costs and by committing a new offense, i.e., family violence assault against his girlfriend. In his first and second issues, appellant contends that the evidence was insufficient to prove either allegation. Regarding the family violence assault, he contends that (1) the State failed to prove that appellant intentionally, knowingly, or recklessly caused bodily injury to the girlfriend; and (2) appellant’s use of force was justified to remove the girlfriend from his home because she was a trespasser.
At the outset, the State contends in its brief that appellant pleaded "true" to the allegations and that a plea of "true" is sufficient to support the trial court’s revocation of probation. Appellant disputes this contention, and we agree with appellant.
The record reflects that appellant initially pleaded "true" to the allegations in the State’s motion to adjudicate before the State read aloud the allegations. After some discussion with appellant, the court took a recess, and then the State read aloud the allegations. To these allegations, appellant pleaded "not true."
The judgments in each case erroneously reflect that appellant pleaded "true" to the allegations. Accordingly, we reform the judgments to reflect that appellant pleaded "not true." See Houston-Randle v. State , 499 S.W.3d 912, 915–16 (Tex. App.—Houston [14th Dist.] 2016, pet. ref'd). We now address the merits of appellant’s first and second issues.
To revoke probation, the State must prove a violation of a condition of probation by a preponderance of the evidence. Hacker v. State , 389 S.W.3d 860, 864–65 (Tex. Crim. App. 2013). A preponderance of the evidence is met if the greater weight of the credible evidence creates a reasonable belief that the defendant has violated a condition of probation. Id. at 865.
We review the trial court’s ruling for an abuse of discretion. Id. A trial court does not abuse its discretion if the ruling is within the zone of reasonable disagreement. Burch v. State , 541 S.W.3d 816, 820 (Tex. Crim. App. 2017). A ruling is within this zone if there are two reasonable views of the evidence. Id.
Evidence is sufficient to revoke probation if there is more than a scintilla of evidence. Hacker , 389 S.W.3d at 865. The trial court is the sole judge of the credibility of witnesses and the weight to be given their testimony. Id. To reverse a trial court’s rejection of a justification defense, an appellate court would need to conclude that the defense was "shown as a matter of law." Roberts v. State , 363 S.W.2d 261, 262 (Tex. Crim. App. 1962).
To prove that appellant committed a new offense in this case, the parties agree that the State had to prove, among other things, that appellant caused bodily injury to the girlfriend and did so at least recklessly. See Tex. Penal Code § 22.01(a)(1). A "bodily injury" assault is a result-oriented offense. Landrian v. State , 268 S.W.3d 532, 536 (Tex. Crim. App. 2008). A person acts recklessly with respect to the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. Tex. Penal Code § 6.03(c).
A person in possession of land is justified in using force "when and to the degree the actor reasonably believes the force is immediately necessary to prevent or terminate the other’s trespass on the land." Id. § 9.41(a). A "reasonable belief" is one that would be held by an ordinary and prudent person in the same circumstances as the actor. Id. § 1.07(a)(42). A person may not use more force than is necessary to eject or expel someone from the person’s home. Petty v. State , 126 Tex.Crim. 185, 70 S.W.2d 718, 719 (1934). Whether a belief was reasonable and justifiable and whether the defendant used more force than necessary under the circumstances are questions for the factfinder to decide. See Henley v. State , 493 S.W.3d 77, 93–94 (Tex. Crim. App. 2016) (regarding self-defense) (citing Hayes v. State , 728 S.W.2d 804, 808 (Tex. Crim. App. 1987) ); see also Juarez v. State , 308 S.W.3d 398, 405 (Tex. Crim. App. 2010) ().
Two witnesses testified during the hearing: the girlfriend and appellant. The girlfriend, who was pregnant with appellant’s child at the time of the altercation, testified that she discovered appellant had been speaking "sexually" with the girlfriend’s best friend. The girlfriend testified that she was upset with appellant, and she told appellant that she would "fuck his life up." She drove to appellant’s house and knocked on the door. He let her inside, and they argued. She testified that she did not "get physical" with him; she didn't touch him. He wanted her to leave, but she refused to leave right away. He was trying to get her out of the house when he grabbed her. He "jumped" her and grabbed her by the neck. He had a strong grip on her neck, and she felt like she couldn't breathe. She testified that he asked her to leave numerous times while grabbing her and that the purpose of him grabbing her was to get her out of the house.
The girlfriend was able to leave and call 911. When officers arrived, they took photographs of her injuries. The photographs were admitted as exhibits and depict red marks on her neck and on her wrist.
The girlfriend testified that for some time after the incident, appellant would constantly call her phone. He would use different phone numbers to call her, and she had to block over thirty of them. He also hacked into her phone and her social network websites, called people who she knew, and told them untrue things—embarrassing, personal things.
Appellant testified that the girlfriend was upset when she came to his house. She was ringing the doorbell, honking her car horn, and calling him. He let her inside, and at first, he wanted to try to work things out. He testified that she broke his television and threw a plate, and eventually she started swinging at him. He testified that he asked her to leave multiple times, but she would not. He testified, nonetheless, that he did not punch, slap, kick, or choke her.
The girlfriend testified that she weighed 105 pounds and was five feet, three inches tall. Appellant weighed 200 pounds and was six feet, once inch tall.
Appellant does not dispute that he caused bodily injury to the girlfriend, but he contends that there is insufficient evidence of his intent. As the sole judge of the weight and credibility of the evidence, the trial court could have credited the girlfriend’s testimony that appellant grabbed her by the neck and choked her. See Hacker , 389 S.W.3d at 865. Proof of his culpable mental state can be inferred from his words and conduct. See Bin Fang v. State , 544 S.W.3d 923, 928 (Tex. App.—Houston [14th Dist.] 2018, no pet.). The trial court could have inferred that appellant acted at least recklessly because a person would be aware that there is substantial and unjustifiable risk of bodily injury by choking someone. Cf. id. at 928–29 ().
Similarly, it was within the zone of reasonable disagreement for the trial court to find that appellant exerted more force than necessary to remove the girlfriend from his home during a heated argument. In particular, the trial court could have concluded that appellant’s choking a former lover who was half his size was not reasonable and justifiable under the circumstances. See Henley , 493 S.W.3d at 93–94 (). And, the court could have inferred that an ordinary and prudent person under the same circumstances as appellant would not have reasonably believed choking the girlfriend was immediately necessary to terminate the girlfriend’s trespass in appellant’s home. The trial court heard evidence that the girlfriend was initially a guest in the home and that appellant harbored animosity toward the girlfriend well after the altercation.
In sum, there is more than a scintilla of evidence to support the trial court’s finding that appellant committed a new offense by recklessly, and unjustifiably, causing bodily injury to his girlfriend.
Appellant’s first and second issues are overruled.
Appellant complains in his third issue that the trial court overruled an objection to the State’s closing argument concerning facts not in evidence. The State contends that appellant failed to preserve error for most of the statements that appellant complains about on appeal, that the sole statement for which error was preserved was a proper summation of the evidence, and that any error in allowing the State to make the statement was harmless.
Appellant pleaded guilty to the offenses of aggravated assault with a deadly weapon and aggravated promotion of...
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