Isreal v. State, 03-17-00296-CR
| Decision Date | 26 October 2018 |
| Docket Number | NO. 03-17-00296-CR,03-17-00296-CR |
| Parties | Robert Isreal, Appellant v. The State of Texas, Appellee |
| Court | Texas Court of Appeals |
Robert Isreal, Appellant
v.
The State of Texas, Appellee
NO. 03-17-00296-CR
TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN
October 26, 2018
ON MOTION FOR REHEARING
FROM THE DISTRICT COURT OF TRAVIS COUNTY, 450TH JUDICIAL DISTRICT
NO. D-1-DC-16-904098, THE HONORABLE BRAD URRUTIA, JUDGE PRESIDING
MEMORANDUM OPINION
We withdraw the memorandum opinion and judgment dated August 8, 2018, substitute the following memorandum opinion and judgment in their place, and deny the State's motion for rehearing.
A jury convicted appellant Robert Isreal of three counts of aggravated family violence assault—aggravated family violence assault causing serious bodily injury with a deadly weapon, see Tex. Penal Code § 22.02(b)(1), aggravated family violence assault with a deadly weapon, see id. § 22.02(a)(2), and aggravated family violence assault causing serious bodily injury, see id. § 22.02(a)(1)—all arising out of a single assaultive incident involving his former girlfriend. The jury assessed appellant's punishment, enhanced pursuant to the repeat offender provisions of the Penal
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Code, at confinement for 50 years in the Texas Department of Criminal Justice and an $8,000 fine, see id. § 12.42(c)(1), confinement for five years in the Texas Department of Criminal Justice, see id. §§ 12.42(b), 12.32, and confinement for five years in the Texas Department of Criminal Justice, see id. §§ 12.42(b), 12.32, respectively. The trial court ordered the sentences to be served concurrently. See id. § 3.03(a). On appeal, appellant complains about error in the jury charge and asserts a double jeopardy violation. We affirm in part and vacate in part.
The jury heard evidence that appellant and Stacey Smith were involved in a romantic relationship for several years. They lived together for two years, but their relationship was "bumpy" at times, and appellant moved out when he began a relationship with another woman. Evidence at trial reflected that the incident forming the basis of the instant offenses occurred approximately two months after appellant moved out when the couple was considering getting back together.
Smith testified that even after she and appellant broke up and he moved out, and although both of them were involved in other relationships, she and appellant would meet once or twice a week to have sex at the horse pen where appellant and his brother kept horses. Smith recounted that on March 3, 2015, she met appellant at the horse pen after she got off work, and they had sex in his truck. She explained that after their sexual encounter, she went back to her car. She
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was sitting in the driver's seat and appellant was standing by the open car door when appellant asked her to fix something on his cell phone. She agreed, and he retrieved the phone from his truck and gave it to her. Smith testified that she saw a text from another woman on appellant's phone, became angry, and slapped appellant. Smith recounted that appellant then grabbed her wrist and cut it with his pocket knife. Next, he grabbed her by her hair and pulled her from the car. According to Smith, appellant dragged her to the back of her car, opened the trunk, and threatened to kill her. Smith explained that she lost consciousness and woke up the next day in the hospital.
The evidence at trial reflected that appellant left the scene after calling his brother. Appellant's brother responded to the horse pen and called 911 when he found Smith "breathing but in bad shape." Paramedics were dispatched to the location and found Smith "profoundly unconscious" and unresponsive to any stimuli. One of the paramedics testified that Smith had "a lot of facial trauma" indicative of being struck multiple times. The paramedics "declared a trauma activation," which involved transporting Smith to a trauma center as soon as possible, ideally within ten minutes, due to her severe condition. Smith was taken by ambulance to the hospital, where she remained for 17 days.
Testimony from the treating emergency room physician showed that upon arrival at the hospital, Smith was unable to verbally communicate due to her injuries. A CT scan of Smith's head showed "extensive scalp hematomas"; a CT scan of her facial area showed "extensive soft tissue swelling and hematoma." The ER doctor concluded that Smith's injuries were severe enough that she needed to be admitted to the hospital; she did not meet the criteria for discharge because she could not complete the basic daily activities of living: she could not talk, eat, swallow, or walk. In
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addition, her eyes were swollen shut and she could not see. Further evidence at trial reflected that Smith received speech therapy, occupational therapy, and physical therapy to address the deficits caused by her injuries and to regain functioning for daily life. It was three days before Smith could swallow, five days before she could speak clearly enough to be understood, and seven days before she could open her eyes. An MRI done ten days after Smith was admitted to the hospital still showed a "frontal scalp hematoma and some edema (swelling) in the subcutaneous soft tissues of the neck." Testimony from the ER doctor reflected that Smith's injuries, particularly her eye injuries, were consistent with blunt force trauma—most likely from multiple blows—and strangulation.
Smith testified about her condition upon her release from the hospital and the long-term impact of her injuries: she could not drive; she had to use a walker for at least two months and then had to use a cane; and she was unable to return to work for six months. At the time of trial, nearly two years after the assault, Smith still had problems with her balance, bladder control issues, and memory difficulties. She also said that she could still feel a knot on her forehead and that she suffered from migraines, which she did not suffer from before the assault.
Following the attack on Smith, police developed appellant as a suspect. During the investigation, appellant met with a detective from the Travis County Sheriff's Office on two occasions. Both interviews were recorded, and the recordings of the interviews were admitted during trial. In the first interview, appellant admitted that he assaulted Smith but gave only minimal vague details, indicating that he struck Smith, though he said that he did not know how many times, and that he grabbed Smith by the top of her head and pulled her from her car. In the second interview,
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when confronted with the severity of Smith's injuries (which the detective discovered when he visited Smith in the hospital after the first interview with appellant), appellant said that after Smith slapped him he "just started punching and punching and punching" and then grabbed Smith around her neck and shook her. As he described this, appellant demonstrated the grabbing and strangling with his hands. Appellant said that when he released Smith, "she hit the ground and didn't move."
Appellant raises two points of error on appeal. First, he claims that error in the jury charge deprived him of a fair and impartial trial. Second, appellant asserts that his convictions and punishment for all three offenses violate the prohibition against double jeopardy.
In his first point of error, appellant asserts that the trial court erred by failing to properly tailor the definition of the culpable mental states in the jury charge to the applicable conduct element of the offenses.
We review alleged jury charge error in two steps: first, we determine whether error exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal. Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); Ngo v. State, 175 S.W.3d 738, 743-44 (Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury charge error was preserved in the trial court. Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g) (setting forth procedure for appellate review of claim of jury charge error). If the jury charge error
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has not been properly preserved by an objection or request for instruction, as it was not here, the error must be "fundamental" and requires reversal only if it was "so egregious and created such harm that the defendant was deprived of a fair and impartial trial." Marshall, 479 S.W.3d at 843; Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015); Almanza, 686 S.W.2d at 171.
A trial court is statutorily obligated to instruct the jury on the "law applicable to the case." See Tex. Code Crim. Proc. art. 36.14; Arteaga, 521 S.W.3d at 334. Each statutory definition that affects the meaning of an element of the offense must be communicated to the jury. Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009); Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986). The jury charge should tell the jury what law applies and how it applies to the case. Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007). The trial court's duty to instruct the jury on the "law applicable to the case" exists even when defense counsel fails to object to inclusions or exclusions in the charge. Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). The trial court is "ultimately responsible for the accuracy of the jury charge and accompanying instructions." Vega, 394 S.W.3d at 518 (quoting Delgado, 235 S.W.3d at 249); Taylor, 332 S.W.3d at 488.
The Penal Code delineates three "conduct elements" that can be involved in an offense: (1) the nature of the conduct, (2) the result of the conduct, and (3) the circumstances surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989); see Tex. Penal Code § 6.03. The statutory definitions of the culpable mental state in a jury charge must be tailored to the...
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