Gonzales v. State
| Decision Date | 05 April 2006 |
| Docket Number | Nos. 10-05-00222-CR, 10-05-00223-CR.,s. 10-05-00222-CR, 10-05-00223-CR. |
| Citation | 191 S.W.3d 741 |
| Parties | Charlie Julius GONZALES, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
John A. Kuchera, Waco, for Charlie Julius Gonzales.
John W. Segrest, McLennan County Dist. Atty., Waco, for the State of Texas.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
Charlie Gonzales appeals from a conviction for aggravated assault. He was charged in a four-count indictment with two counts of aggravated sexual assault and two counts of aggravated assault alleged to have been committed against the same person on a single date (Trial Court No. 2002-274-C). He pled not guilty, and his first trial ended in a mistrial. Gonzales was then charged in a second indictment with aggravated assault in two paragraphs (Trial Court No. 2003-689-C), alleged to have been committed against the same person and on the same date as the offenses in the first indictment. Although the two causes were not consolidated, they were tried together to a jury by agreement of the parties.1 The jury was given separate verdict forms on the two aggravated sexual assault counts and returned verdicts of not guilty. The jury was given only one verdict form for the offense of aggravated assault. The application paragraph of the charge authorized conviction on any act alleged in either of the two aggravated assault allegations from the initial indictment or the two allegations from the second indictment. The jury found Gonzales guilty of the offense of aggravated assault and assessed punishment at twenty years' confinement and a $10,000 fine. Based on the single verdict form, a judgment of conviction was entered in each case assessing the jury's punishment.
In an earlier appeal, we sustained one issue and remanded the case to the trial court for a hearing on Gonzales's motion for new trial. See Gonzales v. State, 2005 WL 428463 (Tex.App.-Waco Feb.23, 2005, no pet.) (mem. op.) (not designated for publication). The trial court held a hearing and denied the motion, and Gonzales now appeals each case again.
Gonzales brings three issues in each appeal. One issue in each appeal is identical: whether the trial court erred in submitting instructions that allowed the jury to convict Gonzales of aggravated assault without requiring unanimity on the act of assault. In Trial Court No. 2002-274-C (our No. 10-05-00222-CR), Gonzales also challenges the aggravated assault conviction on the ground that the evidence is legally and factually insufficient to show that a knife was used or exhibited as a deadly weapon. In Trial Court No. 2003-689-C (our No. 10-05-00223-CR), Gonzales also challenges the aggravated assault conviction on the ground that the evidence is legally and factually insufficient to show that the complainant suffered serious bodily injury as a result of being struck by Gonzales's hand or elbow. We will affirm.
The complainant testified that she and Gonzales attended a festival, became intoxicated, and got in an argument. They left the festival and went to the home they shared. Gonzales became increasingly angry with her. He ordered her into the bathroom and told her to disrobe and defecate because he intended to penetrate her anally. While she was seated on the toilet, he forced her to perform oral sex on him as he held a knife to her. At one point he tapped her on the back with the knife and cut her on her shoulder blade. Gonzales then told her to go into the bedroom, where he forced her to allow him to penetrate her anally. During the intercourse, he punched her in the back of the head. He then got on top of her, pinned her arms, and beat her with his elbows and fists. She temporarily lost consciousness, and when she regained consciousness, she was bleeding from the nose. Gonzales told her to shower to clean herself. After lying in the shower for a while, she put on a bathrobe and went to the kitchen, where she saw Gonzales "crying hard" with a knife in his hand. Believing that he was about to "finish [her] off," she grabbed a cordless phone and attempted to dial 9-1-1 as she ran from the house. He chased her, and the two struggled from the door out onto the lawn, where she said he grabbed her by the throat. She went to a neighbor's house, and the neighbor called the police and an ambulance, which took the complainant to the hospital. It appeared to the neighbor that the complainant had been assaulted, and the neighbor assumed that Gonzales was the assailant.
When police arrived at the house, no one was there. In a back bedroom, police found a mattress with fresh blood on it. Also found there was a phone with blood on the back of it, but not on the earpiece. On the living room floor near the front door, a cordless phone was found, and when the "redial" button was pushed, 9-1-1 appeared. This phone was working, but the 9-1-1 call had never gone out. A pile of wet women's clothes were found next to the bathtub, along with a shirt with blood spots and an ice-cube on it. A knife was found in the front yard, near the porch.
Gonzales impeached the complainant in several respects. She initially denied resuming a sexual relationship with Gonzales after the assaultive episode but later admitted that it did resume extensively and that she had tried to "get back together" with Gonzales. She admitted that after the assault, she "keyed" Gonzales's vehicle when he would not let her in his house, she was "warned away" from his house by police, and just before the first trial that ended in mistrial, she had left Gonzales numerous phone messages begging Gonzales to let her come back. She also admitted that she had been put on probation for previously making a false report of sexual assault, which she explained was only partially false—Gonzales did not rape her on the date that she reported, but he had raped her about a month before her report.
Gonzales testified in his own defense that after they returned home from the festival, he and the complainant "drank a little bit," "smoked marijuana," "watched TV," and "had sex." Some friends called, and he invited them over. This upset the complainant. They argued, she began pushing and shoving Gonzales, and she threatened to kill herself with a knife. Gonzales said that when one of his friends arrived, she told Gonzales: He told her that she was pathetic and that if she was going to kill herself, he was not going to stand and watch. Gonzales denied assaulting the complainant in any way and said that the wounds were self-inflicted with the phone. Gonzales testified that he then left with his friend. Later that night, Gonzales had a friend drive him by the house, but they did not stop because there were several police cars there. He stayed with a friend for a few days. Gonzales said that a day or two after the episode, the complainant called him, crying and telling him that she was sorry, stating, "she don't know why she does what she does." A few days later, Gonzales turned himself in to police.
The first indictment alleged in Count 3 that Gonzales committed aggravated assault by cutting the complainant's back with a knife. Count 4 alleged aggravated assault by Gonzales's threatening the complainant with imminent bodily injury with a knife. The second indictment alleged in the first "paragraph"2 that Gonzales committed aggravated assault by striking the complainant with his hand or elbow. The second paragraph alleged aggravated assault by Gonzales's striking or strangling the complainant with this hand, which was used as a deadly weapon.
The application paragraph in the jury charge reads in pertinent part:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 26th day of August, 2001, in McLennan County, Texas, the Defendant, Charlie Julius Gonzales did intentionally, knowingly, or recklessly cause bodily injury to [the complainant] by cutting her in the back, and the defendant did then and there use or exhibit a deadly weapon, to-wit: A knife, during the commission of said assault; or did then and there intentionally or knowingly threaten [the complainant] with imminent bodily injury, and did then and there use or exhibit a deadly weapon, to-wit, a knife during the commission of the said assault; or did then and there intentionally, knowingly, or recklessly cause serious bodily injury to [the complainant], by striking her with his hand or elbow; or did then and there intentionally, knowingly, or recklessly cause bodily injury to [the complainant], by striking, or strangling her with his hand, and the Defendant did then and there use or exhibit a deadly weapon, to-wit: His Hand, during the commission of said assault, then you will find the defendant guilty of aggravated assault as alleged in the indictment. [Emphasis added.]
A jury verdict in a criminal case must be unanimous.3 TEX. CONST. art. V, § 13; TEX.CODE CRIM. PROC. ANN. art. 36.29(a) (Vernon Supp. 2005). A unanimous jury verdict "ensures that the jury agrees on the factual elements underlying an offense," requiring "more than mere agreement on a violation of a statute." Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim.App.2000). However, a trial court may submit a disjunctive jury charge and obtain a general verdict where the alternate theories involve the commission of the "same offense." Id. at 124; Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App. 1991). Because of the possibility of a non-unanimous jury verdict, "separate offenses" may not be submitted to the jury in the disjunctive. Francis, 36 S.W.3d at 124-25.
In his first issue in both appeals, Gonzales asserts that under this charge, he was deprived of his right...
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