Garcia v. State
| Decision Date | 14 October 2021 |
| Docket Number | 11-19-00344-CR |
| Parties | JACOB ADAM GARCIA, Appellant v. THE STATE OF TEXAS, Appellee |
| Court | Texas Court of Appeals |
Do not publish. See Tex. R. App. P. 47.2(b).
On Appeal from the 42nd District Court Taylor County, Texas Trial Court Cause No. 27130A
Panel consists of: Bailey, C.J., Trotter, J., and Williams, J.
The jury convicted Appellant, Jacob Adam Garcia, of the second-degree felony offense of aggravated assault with a deadly weapon: to wit, a knife. Following Appellant's plea of true to an enhancement allegation, the jury found the enhancement to be true and assessed punishment at confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of forty-five years. Appellant presents two issues on appeal: (1) that the trial court erred in denying Appellant's requested jury instruction on the lesser included offense of deadly conduct and (2) that the evidence at trial was legally insufficient to support the deadly weapon finding. We affirm.
On September 30, 2016, Roy Martinez Jr., his girlfriend Jamie Dickerson, and his niece Stephanie Maldonado were out together at the Western Edge bar in Abilene. The three arrived sometime after 9:00 p.m. for drinks and karaoke. Shortly after Martinez, Dickerson, and Maldonado arrived at the bar, another group arrived, consisting of Appellant Cherokee Miller, and four others. The men in the second group, including Appellant, were wearing Villista T-shirts. The Villista is known to be a support group for the Banditos motorcycle club. Dickerson testified that she was sitting at a table near the karaoke booth when she was approached by Miller.
Words were exchanged between Miller and Dickerson. Michelle Browning, a Western Edge bartender, testified that Miller hit Dickerson with a beer bottle and threw her into a pool table. Chairs and tables were knocked down and several other patrons, including Martinez, attempted to stop the fight and to pull the women apart. After Dickerson was able to free herself from Miller's assault, she saw Martinez lying on a table, bleeding, and she heard Maldonado cry out "Please stop!"
Maldonado testified that during the chaos of the fight, she, Dickerson and Martinez were separated but that, when she located Martinez, she witnessed Appellant stab him at least eight times. She screamed at Appellant to leave Martinez alone, and when Appellant stopped, she heard Appellant say, "Let's get the hell out of here, let's get the F out of here." Maldonado testified that she saw Appellant close the folding knife that he was holding and exit the bar. Dickerson also testified that she saw Appellant folding up a knife with a silver, six-to-eight-inch tapered blade and running out the door of the bar following the stabbing.
Martinez testified that, as he was attempting to break up the fight between Dickerson and Miller, he was attacked by Appellant and another man. According to Martinez, Appellant had a knife and used it to stab Martinez several times. The injuries to the left side of Martinez's body resulted from Appellant stabbing Martinez with a knife. The other assailant, Danny Machado, stabbed Martinez in the back of the head and the back of the neck.
After Miller, Appellant, and the four others left the bar, Martinez was discovered to have multiple stab wounds that were bleeding profusely. Despite efforts by Dickerson, Maldonado, the owner of the bar, and several others, they were not able to control the bleeding. Bartender Taylor Bien testified that over fifty bar towels were used to attempt to control the loss of blood. Dickerson testified that with the loss of blood, Martinez was having trouble maintaining consciousness. After Browning's call to 9-1-1, officers and paramedics quickly arrived on the scene.
Officer Bradley Hambright, Officer Sterling Riddle, and Dr. Kelly Hyde all testified that Martinez's injuries were consistent with knife wounds. Martinez was transported by ambulance to Hendrick Medical Center in Abilene. Upon arrival, Martinez was examined by Dr. Hyde in the Hendrick emergency Dr. Hyde observed more than seven penetrating injuries to Martinez's neck and left side, with two "fairly substantial open lacerations" to the left flank and one to the thorax that required surgery. One laceration exposed his left lower rib, which was partially severed in the attack. Dr. Hyde focused his care primarily on the two injuries to the left flank because these presented a risk of serious injury to internal organs. Martinez underwent surgery. Martinez convalesced for approximately five days in the hospital. He was not able to return to work for two months, and at the time of trial, Martinez testified that he continued to have trouble lifting objects and using his left hand.
The grand jury indictment alleged that Appellant "intentionally and knowingly use[d] a deadly weapon, to-wit: a knife, that in the manner of its use and intended use was capable of causing death or serious bodily injury, and the said [Appellant] did then and there intentionally and knowingly cause bodily injury to Roy Martinez, Jr. by stabbing the said Roy Martinez, Jr. with said deadly weapon. The jury was instructed on the indicted offense of aggravated assault with a deadly weapon. At the conclusion of the guilt/innocence phase, and before the charge was read to the jury, Appellant's trial counsel requested the submission of the lesser included offense of deadly conduct. The trial court denied the request, and the jury convicted Appellant of aggravated assault with a deadly weapon.
Appellant raises two issues. First, Appellant challenges the trial court's refusal to instruct the jury on the lesser included offense of deadly conduct. Second, Appellant contends that the evidence was insufficient to support a jury finding that the knife used by Appellant was a deadly weapon.
Appellant argues in his first issue that the trial court erred when it denied Appellant's request to instruct the jury on the lesser included offense of deadly conduct.[1] We disagree.
A. Lesser Included Jury Instruction
First, we must determine, as a matter of law, whether the offense to be submitted is a lesser included offense of the charged offense. Safian v. State, 543 S.W.3d 216, 219-20 (Tex. Crim. App. 2018); Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011). This is a question of law that does not depend on the evidence presented at trial. Safian, 543 S.W.3d at 220; Rice, 333 S.W.3d at 144. Because the first prong of the analysis concerns a question of law, we Wortham v. State, 412 S.W.3d 552, 555 (Tex. Crim. App. 2013) (alterations in original) (quoting Hall v. State, 225 S.W.3d 524, 536 (Tex. Crim. App. 2007)). An offense is a lesser included offense if "it is established by proof of the same or less than all the facts required to establish the commission of the offense charged." Tex. Code Crim. Proc. Ann. art. 37.09(1) (West 2006); Wortham, 412 S.W.3d at 554-55.
Second, we determine whether there is some evidence in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser included offense. Safian, 543 S.W.3d at 219; Rice, 333 S.W.3d at 145. We review all of the evidence presented at trial. Rousseau v. State, 855 S.W.2d 666, 673 (Tex. Crim. App. 1993); Ybarra v. State, 621 S.W.3d 371, 379 (Tex. App.-Eastland 2021, pet. ref'd). This requirement is satisfied if there is "(1) evidence that directly refutes or negates other evidence establishing the greater offense and raises the lesser -included offense or (2) evidence that is susceptible to different interpretations, one of which refutes or negates an element of the greater offense and raises the lesser offense." Ritcherson v. State, 568 S.W.3d 667, 671 (Tex. Crim. App. 2018). If there is more than a scintilla of evidence raising the lesser offense or negating or rebutting an element of the greater offense, the defendant is entitled to a jury instruction on the lesser included offense. Id. This evidence cannot be speculative; it must consist of affirmative evidence that raises both the lesser included offense and rebuts or negates an element of the greater offense. Ybarra, 621 S.W.3d at 379 (citing Wortham, 412 S.W.3d at 558).
As relevant here, a person commits the offense of assault if he "intentionally [or] knowingly . . . causes bodily injury to another." Tex. Penal Code Ann. § 22.01(a)(1) (West Supp. 2020).[2] An assault is elevated to aggravated assault if, while committing the assault, the person "uses or exhibits a deadly weapon." Id. § 22.02(a)(2) (West 2019). A person commits the offense of deadly conduct if "he recklessly engages in conduct that places another in imminent danger of serious bodily injury." Id. § 22.05(a). When the State establishes the higher culpable mental state of intentionally or knowingly, it necessarily establishes the lower mental state of recklessness. Guzman v. State, 188 S.W.3d 185, 190 (Tex. Crim. App. 2006); Bell v. State, 693 S.W.2d 434, 438-39 (Tex. Crim. App. 1985). There is no dispute in this case that deadly conduct is a lesser included offense of aggravated assault. See Guzman, 188 S.W.3d at 190-91; Whitfield v. State, 408 S.W.3d 709, 718 (Tex. App.-Eastland 2013, pet....
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