Johnson v. State
| Decision Date | 22 October 2008 |
| Docket Number | No. 10-07-00342-CR.,10-07-00342-CR. |
| Citation | 271 S.W.3d 756 |
| Parties | Innis JOHNSON, Appellant, v. The STATE of Texas, Appellee. |
| Court | Texas Court of Appeals |
Curtis E. Barton, Jr., State Counsel for Offenders, Huntsville, for appellant.
Melinda Mayo Fletcher, Special Prosecution Unit, Appellate Division, Amarillo, for appellee.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
A jury convicted Innis Johnson of aggravated assault of a public servant and, after he pleaded true to enhancement allegations, assessed his punishment at fifty-five years' imprisonment. Johnson contends in two issues that: (1) the court erred by denying his motion for instructed verdict because the evidence is legally insufficient to prove he used or exhibited a deadly weapon during the commission of the assault; and (2) the court abused its discretion by allowing the State to impeach him with his prior conviction for aggravated assault of a public servant because the probative value of this evidence is outweighed by the danger of unfair prejudice. We will affirm.
Johnson contends in his first issue that the court erred by denying his motion for instructed verdict because the evidence is legally insufficient to prove he used or exhibited a deadly weapon during the commission of the assault.
A challenge to the denial of a motion for a directed or instructed verdict is a challenge to the legal sufficiency of the evidence. McDuff v. State, 939 S.W.2d 607, 613 (Tex.Crim.App.1997); Montgomery v. State, 198 S.W.3d 67, 84 (Tex.App.-Fort Worth 2006, pet. ref'd); accord Canales v. State, 98 S.W.3d 690, 693 (Tex.Crim.App. 2003). In reviewing a claim of legal insufficiency, we view all of the evidence in a light most favorable to the verdict and determine whether any rational trier of fact could have found the essential element beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Sells v. State, 121 S.W.3d 748, 753-54 (Tex.Crim.App. 2003); Witt v. State, 237 S.W.3d 394, 396-97 (Tex.App.-Waco 2007, pet. ref'd).
We measure the sufficiency of the evidence against the hypothetically correct jury charge for the case. Hooper v. State, 214 S.W.3d 9, 14 (Tex.Crim.App.2007); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.App.1997). Among other things, the hypothetically correct charge must accurately apply the "law" as "authorized by the indictment." See Curry v. State, 30 S.W.3d 394, 404 (Tex.Crim.App.2000) (citing Malik, 953 S.W.2d at 240); see also Lockwood v. State, 237 S.W.3d 428, 431 (Tex.App.-Waco 2007, no pet.); Sartain v. State, 228 S.W.3d 416, 421 (Tex.App.-Fort Worth 2007, pet. ref'd). This means that the charge must instruct the jury on the statutory element(s) alleged in the indictment. Curry, 30 S.W.3d at 404-05.
In addition, the charge is limited by the factual allegations of the indictment. See id. at 404. But cf. Gharbi v. State, 131 S.W.3d 481, 483 (Tex.Crim.App.2003) () (quoting Gollihar v. State, 46 S.W.3d 243, 254 (Tex.Crim.App.2001)). Thus, because the indictment in Curry alleged that he had kidnapped Jetterson Williams, the "hypothetically correct jury charge could not simply quote the language of the statute" and instruct the jury to convict if it found he had kidnapped "another person." See Curry, 30 S.W.3d at 404. Rather, the hypothetically correct charge for that case would instruct the jury that the State must prove Curry had kidnapped Williams as alleged. Id.
At the time of the offense, Johnson was incarcerated at TDCJ's Ferguson Unit. The evidence reflects that Johnson punched correctional officer Christina Genco in the jaw with his fist. He then drug her into the dayroom for that cell block and took her to a bench where he held her with a piece of glass against her neck. As other correctional officers surrounded them, Genco was able to pry the glass away from her neck. One of the officers sprayed Johnson with "COP," which is similar to mace or pepper spray, and the others then took hold of Johnson and escorted Genco to the prison infirmary. The blow to Genco's jaw caused a fracture of the mandible near the cleft of her chin.
Christopher Smith was the only TDCJ employee who witnessed the assault outside the dayroom. He saw Johnson punch Genco in the jaw with a closed fist and then drag her into the dayroom. He did not see a piece of glass in Johnson's hand when he hit Genco. David Simmons testified that, when he responded to the call for assistance, he saw Johnson on the bench holding Genco in a head lock with a piece of glass to her throat. Nicholas Blazek similarly testified that he initially observed Johnson in the corner of the dayroom with the piece of glass to Genco's throat.
When Frances McCormick responded, she saw Johnson dragging Genco into the dayroom. McCormick testified on direct examination by the prosecutor that she saw Johnson dragging Genco backwards into the dayroom and that he had his hands "[a]round her throat with the piece of glass." On cross-examination, McCormick testified that she did not see a piece of glass in Johnson's hand as he drug Genco to the bench. Rather, she "just kn[ew] he had his hand or something around [Genco's] neck." She did not actually see the piece of glass in his hand until he was at the bench.
David Burns testified that when he arrived he likewise saw Johnson dragging Genco through the dayroom. According to Burns, Johnson had her "in a headlock with a piece of glass applied to the side of her neck." When Burns ordered Johnson to let her go, Johnson replied that he was "going to cut [her] neck." Johnson disregarded three orders to stop as he drug her to the bench.
Genco testified that she does not remember being hit. The last thing she recalls before the assault was telling an inmate the time. "Everything went black," and when she came to, Johnson was dragging her through the dayroom door with his arm tightly around her neck which made it difficult to breath. As she held Johnson's arm and turned her head trying to breath, he yelled at her to "stop grabbing" his arm. She told him she was just trying to breath. Johnson then hit her in the jaw a second time, and she blacked out again. When she came to the second time, she was at the bench at the back of the dayroom, and Johnson was holding the piece of glass against her throat. On cross-examination, she testified that this was the first moment when she noticed that Johnson had a piece of glass.
Besides the broken jaw, Genco suffered minor cuts and abrasions to her neck and four fingers. She had no cuts or abrasions on the outside of her jaw or chin.
After the State rested, Johnson moved for an instructed verdict on the basis that the State presented no evidence that he had used or exhibited the piece of glass during the commission of the assault. Johnson also asked the court to require the State to elect which assault it intended to rely on for prosecution. The court denied both requests.
Johnson testified in his own defense. He admitted that he hit Genco in the jaw with his fist and dragged her to a bench in the dayroom, but he denied hitting her a second time. He also denied holding a piece of broken glass at any point during the incident.
The indictment alleges that Johnson caused bodily injury to Genco "by striking [her] with a hand, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a piece of glass, during the commission of said assault."
Johnson contends that the assault alleged in the indictment was complete after he hit Genco in the chin and that his use of the piece of glass in the dayroom did not happen "during the commission of" the assault. The State responds that "the assault was a series of events, including the blow to the jaw and the verbal death threats and the glass to the throat."
We construe the State's position as an assertion that assault is a "continuing offense." See Barnes v. State, 824 S.W.2d 560, 561-62 (Tex.Crim.App.1991). In determining whether theft is a continuing offense for limitations purposes, the Court of Criminal Appeals observed, "Generally, when each of the elements of a crime have [sic] occurred, the crime is complete." Id. at 562. Relying on a decision of the United States Supreme Court, the Court recognized that only in "limited circumstances" will an offense be construed as continuing in nature and held that an offense should not be so construed "unless the explicit language of the substantive criminal statute compels such a conclusion or the nature of the crime is such that [the Legislature] must assuredly have intended that it be treated as a continuing one." Id. (quoting Toussie v. United States, 397 U.S. 112, 115, 90 S.Ct. 858, 860, 25 L.Ed.2d 156 (1970)). Under this test and for the reasons set forth below, we hold that aggravated assault is not a "continuing offense."
Because the indictment alleges that Johnson assaulted Genco by "striking [her] with a hand," this is the "offense" the State had to prove. The deadly weapon allegation is consistent with section 22.02(a)(2) of the Penal Code which proscribes the use or exhibition of a deadly weapon "during the commission of the assault."1 See TEX. PEN.CODE ANN. § 22.02(a)(2) (Vernon Supp.2008). Under the plain language of the indictment and from the statute,2 the State thus had to prove that Johnson used or exhibited the piece of glass "during the commission of the assault." See Curry, 30 S.W.3d at 404-05. The issue we must determine is how long did the commission of the assault last. Resolution of this issue depends in part on how the charged offense is defined.
Criminal offenses generally involve one of...
To continue reading
Request your trial
- Hernandez v. State
-
Wheatley v. State, No. 14-09-00056-CR (Tex. App. 6/10/2010)
... ... We may not substitute the jury's determinations with our own, especially when dealing with the weight and credibility of the evidence. See Johnson v. State, 23 S.W.3d 1, 9 (Tex. Crim. App. 2000) ... Viewing the evidence in the light most favorable to the verdict, we find that ... ...
- Wilson v. State, 05-10-01604-CR
- Sixtos v. State