Campbell v. State, 01-05-01126-CR.

• Decision Date: 27 April 2007
• Docket Number: No. 01-05-01126-CR.,01-05-01126-CR.
• Citation: 227 S.W.3d 326
• Parties: Wayne O'Hara CAMPBELL, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

227 S.W.3d 326

Wayne O'Hara CAMPBELL, Appellant, v. The STATE of Texas, Appellee.

No. 01-05-01126-CR.

Court of Appeals of Texas, Houston (1st Dist.).

April 27, 2007.

Clyde Williams, Houston, for appellant.

Charles A. Rosenthal, Jr., Dist. Atty.-Harris County, Eric Kugler, Asst. Dist. Atty. of Harris County, Houston, for appellee.

Panel consists of Justices TAFT, KEYES, and HANKS.

OPINION

TIM TAFT, Justice.

A jury found appellant, Wayne O'Hara Campbell, guilty of aggravated assault. See TEX. PEN.CODE ANN. § 22.02 (Vernon Supp.2006). The trial court assessed his punishment at 50 years in prison. We determine whether egregious harm resulted from the trial court's submitting a jury charge that appellant contends required the jurors' unanimity in finding him not guilty of the greater offense of aggravated assault before it could consider whether he was guilty of lesser-included offenses. We modify the judgment, though only for a ministerial correction, and affirm the judgment as so modified.

Facts

On May 13, 2005, appellant lived in an apartment with his girlfriend, Demetra Ariran, and two of her three daughters. Ariran's third daughter lived in another apartment within the same complex. That evening, appellant drove Ariran and her granddaughter, the child of the third daughter, to a Stop'N Go convenience store. Appellant told Ariran to withdraw money for him from her bank account at an automated teller machine located inside. When Ariran refused, appellant became angry and yelled at her. Ariran and her granddaughter left and walked to Ariran's daughter's apartment. When Ariran and her granddaughter arrived, appellant and Ariran's son-in-law were already there. Ariran left her granddaughter with her son-in-law and walked the short distance to her own apartment. Appellant followed Ariran, yelled at her again about the money, and punched her twice in the face as they walked.

When Ariran and appellant arrived at her apartment, Ariran managed to dial 9-1-1 before appellant took the phone from her and threw it against a wall. She tried to reach a second phone in another room to call 9-1-1 again, but appellant took that phone, too, from her and hit her with it several times. Appellant then dragged Ariran by her hair along the floor to the kitchen, where he pushed her head through a chrome and glass clock and then onto a countertop. When Ariran ran into a bedroom, appellant followed her with a kitchen knife. He threatened her, saying that if he went to jail, he would kill her when he was released. He also continued to hit her. Officers Teel and Horelica of the Houston Police Department arrived at the apartment a few minutes later in response to Ariran's 9-1-1 hang-up call and handcuffed appellant when he answered the door.

Jury-Charge Error

In his sole point of error on appeal, appellant contends that the trial court erred in instructing the jury by requiring the jury unanimously to agree to acquit appellant of a greater offense before it could consider whether he was guilty of a lesser-included offense. Appellant argues that "the jury charge imposed an improper impediment by precluding the jury from even considering a lesser-included offense, unless the jury agreed unanimously to acquit appellant of a greater offense." Appellant argues that unanimity is required only for verdicts, not during deliberations (here, a determination to acquit of a greater offense), and, therefore, that the jury charge was improperly worded. To show harm resulting from this alleged error, appellant notes that the jury deliberations lasted longer than the presentation of the evidence during trial and that the jurors passed a note to the trial court asking for some clarification about "ongoing assault." Appellant argues that these two circumstances indicated that some jurors may have been unconvinced of his guilt of the greater offense, and he concludes that, under the charge given, the jurors believed that they could not acquit him of aggravated assault unless they had unanimously agreed to do so and consequently convicted him of that offense, rather than considering the first lesser-included offense.

Appellant points to the following, italicized language from the jury charge in support of his argument:

Now, if you find from the evidence beyond a reasonable doubt that on or about the 13th day of May, 2005, in Harris County, Texas, the defendant, Wayne O'Hara Campbell, did then and there unlawfully, intentionally or knowingly threaten Demetra Ariran with imminent bodily injury by using or exhibiting a deadly weapon, namely, a knife, then you will find the defendant guilty of aggravated assault, as charged in the indictment.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of aggravated assault, and next consider whether the defendant is guilty of terroristic threat . . . .

[I]f you find from the evidence beyond a reasonable doubt that in Harris County, Texas, on or about the 13th day of May, 2005, the defendant, Wayne O'Hara Campbell, did then and there unlawfully, threaten violence to Demetra Ariran or place Demetra Ariran in fear of imminent serious bodily injury, then you will find the defendant guilty of terroristic threat.

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of terroristic threat and next consider whether the defendant is guilty of assault.

[I]f you find from the evidence beyond a reasonable doubt that in Harris County, Texas, on or about the 13th day of May, 2005, the defendant, Wayne O'Hara Campbell, did then and there unlawfully, intentionally or knowingly threaten Demetra Ariran with imminent bodily injury, then you will find the defendant guilty of assault. . . .

Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of assault.

If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of either aggravated assault or terroristic threat, but you have a reasonable doubt as to which of said offenses he is guilty, then you must resolve that doubt in the defendant's favor and find him guilty of the lesser offense of terroristic threat.

If you believe from the evidence beyond a reasonable doubt that the defendant is guilty of either terroristic threat or assault, but you have a reasonable doubt as to which of said offenses he is guilty, then you must resolve that doubt in the defendant's favor and find him guilty of the lesser offense of assault.

If you have a reasonable doubt as to whether the defendant is guilty of any [sic] offense defined in this charge, you will acquit the defendant and say by your verdict "Not Guilty."

(Emphasis added.)

A. Unanimity and Error

Although we will proceed to conduct a harmless-error analysis, it is not entirely clear that the complained-of charge language requires a unanimous acquittal of the greater offense before the jury may proceed to consider a lesser-included offense or, for that matter, that such a unanimity requirement would be erroneous. As for whether the complained-of portion of the charge requires unanimity, the language reads, "Unless you so find from the evidence beyond a reasonable doubt, or if you have a reasonable doubt thereof, you will acquit the defendant of aggravated assault, and next consider whether the defendant is guilty of terroristic threat . . . ." (Emphasis added.) The word "unanimously" does not appear in this portion of the jury charge. Indeed, as appellant argues elsewhere, the only place that "unanimous" appears is in boilerplate language at the end of the charge, in relation to the foreman's duty to certify the verdict once the jury has "unanimously agreed upon a verdict." Additionally, the verdict form could be viewed to imply that the jury had four equal choices (not guilty of any offense, guilty of the charged offense, or guilty of one of the two lesser-included offenses) because the form contained no separate line for the jury to acquit appellant of the charged or lesser offenses, but simply one line indicating "not guilty" of all three offenses. Finally, in Hutson v. State, No. 03-99-00523-CR, 2000 WL 298675, at * 1 (Tex.App.-Austin, March 23, 2000, pet.ref'd) (not designated for publication), the charge's pertinent application paragraph recited that the jury could proceed to the lesser offense only if "you have found the defendant `not guilty' of" the greater offense. The trial court was asked by a deadlocked jury if it could proceed to consider the lesser offense even though it could not come to a unanimous decision on the greater offense. Id. The trial court allowed the jury to do so, and the jury convicted the accused of the lesser offense. Id. The Austin Court of Appeals found no requirement of unanimity and affirmed the conviction. Id. at 2. In contrast, however, a sound grammatical argument can be made that the "you" in the complained-of portion of the charge refers collectively to all jurors (i.e., "y'all," a term with which we are well familiar in Texas), thereby requiring unanimity.¹

As for whether the complained-of portion of the charge was erroneous, we note that the charge given in this case has been approved in several cases, albeit without addressing appellant's precise challenge that the jury charge required the jury unanimously to acquit of the greater offense before proceeding to consider the lesser-included offenses. See Smith v. State, 744 S.W.2d 86, 94-95 (Tex.Crim. App.1987); Boyett v. State, 692 S.W.2d 512, 515-16 (Tex.Crim.App.1985); Tenner v. State, 763 S.W.2d 877, 884 (Tex.App.-Fort Worth 1988, pet. ref'd); Benavides v. State, 763 S.W.2d 587, 589 (Tex.App.-Corpus Christi 1988, pet. ref'd); McCloud v. State, 692 S.W.2d 580, 584 (Tex.App.-Houston [1st Dist.] 1985, no pet.).

For purposes of our discussion, we will...