Joiner v. State

• Decision Date: 03 July 1991
• Docket Number: No. B14-90-00209-CR,B14-90-00209-CR
• Parties: Herman D. JOINER, Jr., Appellant, v. The STATE of Texas, Appellee. (14th Dist.)
• Court: Texas Court of Appeals

Page 135

814 S.W.2d 135

Herman D. JOINER, Jr., Appellant, v. The STATE of Texas, Appellee.

No. B14-90-00209-CR.

Court of Appeals of Texas Houston (14th Dist.).

July 3, 1991.

Douglas M. O'Brien, Houston, for appellant.

Cathleen C. Herasimchuk, Richmond, for appellee.

Before PAUL PRESSLER, JUNELL and ELLIS, JJ.

OPINION

PAUL PRESSLER, Justice.

Appellant entered a plea of nolo contendre before a jury to the offense of injury to a child. TEX.PENAL CODE ANN. § 22.04(a) (Vernon Supp.1990). He was convicted and the jury assessed punishment at imprisonment for thirty years in the Institutional Division of the Texas Department of Criminal Justice. We affirm.

The thirteen year old complainant was playing outside with her friend when the appellant stopped and started talking to them. Complainant's father asked appellant and the complainant to walk her friend home. As appellant and the complainant were returning from her friend's house, appellant said he wanted to get his bicycle. He walked to the back yard of a deserted house with the complainant. As they entered the back yard, appellant pulled the complainant toward him and kissed her. As she pulled away, he began to choke her. The next thing she remembered was waking up in a hospital room three weeks later.

The appellant testified that he had gone to the Renaissance Festival that day and had three to four beers and two to three glasses of wine. He also had "dropped some acid" the night before but claimed that he did not feel much of the residual effects of the L.S.D. the day of the attack. Appellant testified that the complainant had been joking and pinching him. He explained his attack on the complainant as a result of his drug and alcohol consumption. He also said that the complainant's facial expression reminded him of his mother when she was intoxicated. This made him "mad" so he choked the complainant and "hit her a few times" with his fist and with a 4"' by 4"' board. He recalled "laying" a concrete block on her face. He also stated that although he did not "black out" during the assault, he did not remember it until after a class the next day.

After the attack, appellant went home, took a shower, changed clothes, and then ran over to tell the complainant's father that he heard a strange noise from a neighboring yard. Appellant told the father that he had seen a black man running across the street away from the deserted yard. The father went with appellant, heard a noise "like a howl or an animal cry," went around the back yard corner and saw his daughter lying in a corner naked from the waist down with her top pulled up. According to her father, complainant's face was "crushed" and looked like a "misshapen bloody pulp." The complainant spent three weeks in the intensive care unit of Herman Hospital where she accrued over $70,000 in medical bills. As a result of the attack, she suffered permanent loss of eyesight in her left eye and is unable to support herself.

In his sole point of error, appellant complains that the trial judge committed reversible error by refusing to give the jury a mitigating instruction on "temporary insanity caused by intoxication" pursuant to TEX.PENAL CODE ANN. § 8.04 (Vernon Supp.1990).

In order to raise the issue of insanity by intoxication for the purpose of mitigation under section 8.04, the evidence must establish that a defendant, as a result of intoxication, (1) did not know his conduct was wrong, or (2) was incapable of conforming his conduct to the requirements of the law he violated. Villarreal v. State, 661 S.W.2d 329, 331-332 (Tex.App.--Corpus Christi 1983, no pet.); Hart v. State, 537 S.W.2d 21, 24 (Tex.Crim.App.1976). An accused is entitled to an instruction on every defensive or mitigating issue raised by the evidence. Arnold v. State, 742 S.W.2d 10, 13 (Tex.Crim.App.1987). However, before a defendant may benefit from the provisions of section...