Jones v. State

• Decision Date: 05 December 2007
• Docket Number: No. 06-07-00088-CR.,06-07-00088-CR.
• Citation: 241 S.W.3d 666
• Parties: Donald Ray JONES, Appellant, v. The STATE of Texas, Appellee.
• Court: Texas Court of Appeals

241 S.W.3d 666

Donald Ray JONES, Appellant, v. The STATE of Texas, Appellee.

No. 06-07-00088-CR.

Court of Appeals of Texas, Texarkana.

Submitted November 30, 2007.

Decided December 5, 2007.

David A. Pearson, IV, Fort Worth, for appellant.

Gary Young, Lamar County and Dist. Atty., Paris, for appellee.

Before MORRISS, C.J., CARTER and MOSELEY, JJ.

OPINION

Opinion by Justice MOSELEY.

Donald Ray Jones appeals his conviction by a Lamar County jury of aggravated assault with a deadly weapon and the resulting sentence assessed at thirty years' confinement.

Toward the end of Jones's stormy seven-year marriage to Theresa Davis,¹ Davis had been visiting at her niece's house, drinking beer and celebrating a child's birthday. Davis then elicited a ride from her mother and, upon arriving at the house which she shared with Jones, she discovered the front door locked. After she knocked loudly, either Jones opened the door to allow her to enter or she entered the house through another door. The story line diverges between two versions at this point.

In the version related by the victim, Davis maintained that Jones called her while she was at her niece's house, rudely instructing Davis to immediately return home. After she entered the house and put down her belongings, she asked Jones why he had told her to "Bring [my] ass home," whereupon Jones picked up a walking cane (about as big around as a half dollar and three to four feet in length) and attacked her with it, striking her with the cane between ten and twenty times. The beating ceased when Davis informed Jones that her mother remained outside the house in her car; when Jones went to determine the truth of the statement, Davis ran from the house. Shortly after Davis left the house, Jones ran to his truck, entered it, and sped from the premises. Davis maintained that she had no knife during this incident. Davis had to seek medical treatment for the wounds she suffered.

Jones's account of the encounter was quite different. He testified that Davis had been very drunk the evening before the incident and that he had called Davis's niece the afternoon of the incident to leave word for Davis not to come home if she was intoxicated. When Davis entered the house, she was carrying a beer and acting belligerent. She put down the beer she was carrying and came at him with a knife, cutting his finger. Jones then grabbed the cane and struck Davis repeatedly with it until she dropped the knife. Davis grabbed the cane Jones was still holding and they struggled over it; during this struggle, Jones let go of the cane, causing Davis to fall backward, striking her head on a stove. Jones then hurriedly left the house and went to the residence of his aunt, Betty Jones.

The common threads between the two stories are that Davis entered the house, Jones and Davis argued, and Jones repeatedly struck Davis with the cane. The incident came to a conclusion with Jones rapidly leaving the house, getting into his truck, and leaving.

The State was allowed to introduce evidence of two prior circumstances in which Jones had subjected Davis to physical violence. On one prior occasion in 1999, Jones had struck Davis in the mouth, causing a split lip which needed to be sutured; on another occasion in 2004, Jones had choked Davis. On the first occasion, no criminal charges were filed, but Jones was convicted of family violence assault in 2004.

Jones raises two points of error in his appeal: (1) he complains of the actions of the trial court in allowing the admission of evidence of the two alleged prior assaults of Davis by Jones, and (2) he excepts to the refusal of the trial court to submit the issue of the lesser-included offense of simple assault to the jury.

EVIDENCE OF PRIOR BAD ACTS

Jones complains that the trial court erred in allowing evidence of two prior assaults of Davis by Jones.

Jones correctly points out that Rule 404(b) provides that, "Evidence of other crimes, wrongs or acts is not admissible to prove the character of a person in order to show action in conformity therewith. It may, however, be admissible for other purposes, such as proof of motive, opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident...." See TEX.R. EVID. 404(b).

Jones makes the assertion in his brief that his case is substantially similar to and legally indistinguishable from Hilliard v. State, 881 S.W.2d 917 (Tex.App.-Fort Worth 1994, no pet.), but the two cases are easily distinguishable. In Hilliard, there was no question of self-defense raised by the accused; in this case, there was—the existence of a claim of self-defense is determinative here.

In his opening statement, Jones provided a portion of his rendition of the incident and his version of the reason for physical violence. In that opening statement, Jones said, "The thing is, Mrs. Jones² started this by grabbing the knife and trying to cut Mr. Jones so it is a case of self-defense. You have a right to protect yourself and we are going to ask you to find that."

It is well settled that when an accused claims self-defense, the State, in order to show the accused's intent, may introduce rebuttal evidence of prior violent acts by the accused in order to show the intent of the person claiming self-defense. Halliburton v. State, 528 S.W.2d 216, 218-19 (Tex.Crim.App.1975); Johnson v. State, 963 S.W.2d 140, 144 (Tex.App.-Texarkana 1998, pet. ref'd); Armstrong v. State, 850 S.W.2d 230, 236 (Tex.App.-Texarkana 1993), aff'd, 897 S.W.2d 361 (Tex.Crim. App.1995). Evidence of prior violent acts also may be admissible to refute a defensive theory. See Halliburton, 528 S.W.2d at 218; Albrecht v. State, 486 S.W.2d 97, 101 (Tex.Crim.App.1972); Morrow v. State, 735 S.W.2d 907, 909 (Tex.App.-Houston [14th Dist.] 1987, pet. ref'd). "Extraneous-offense evidence is not inadmissible under Rule 404(b) when it is offered to rebut an affirmative defense or a defensive issue that negates one of the elements of the crime." Casey v. State, 215 S.W.3d 870, 879 (Tex.Crim.App.2007).

In some circumstances, positions or defenses first posited during an opening statement are subject to impeachment. Powell v. State, 63 S.W.3d 435, 439 (Tex. Crim.App.2001). In this circumstance, wherein Jones plainly stated in his opening argument that he was to rely on a claim of self-defense in the altercation which occurred between him and Davis, Jones opened the door for the State to show other incidents wherein Jones had visited violence on Davis. In introducing evidence of prior assaults by Jones on Davis, the State did nothing more than rebut the defense which had been raised by Jones in the opening statement.

This point of error is overruled.

REFUSAL TO INCLUDE CHARGE OF LESSER-INCLUDED OFFENSE

Jones next complains of the refusal of the trial court to instruct the jury that it could find Jones guilty of the lesser-included offense of assault rather than the aggravated assault with which he was indicted.

In Texas, the answers to questions about lesser-included offenses must be based on Article 37.09 of the Texas Code of Criminal Procedure, which states:

An offense is a lesser included offense if:

(1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged;

(2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission;

(3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or

(4) it consists of an attempt to commit the offense charged or an otherwise included offense.

TEX.CODE CRIM. PROC. ANN. art. 37.09 (Vernon 2006).

However, the courts in Texas have struggled through the years regarding the proper application of the issue of lesser-included offenses. The problem in its application to practice deals with the definition in Article 37.09(1) of the term "facts required to establish."

Within the last year, the Texas Court of Criminal Appeals made a detailed review of the issue regarding the application of the lesser-included offense issue and determined that Texas follows the "cognate-pleadings" approach to analysis concerning it. Hall v. State, 225 S.W.3d 524 (Tex. Crim.App.2007). This approach is one "in which the court looks to the facts and elements as alleged in the charging instrument, and not just to the statutory elements of the offense, to determine whether there exists a lesser-included offense of the greater charged offense."³ Id. at 526.

In Hall, the court returned to a two-step analysis discussed in the opinion issued on the original hearing of Day v. State, 532 S.W.2d 302 (Tex.Crim.App. 1975), criticizing the opinion issued on rehearing. In Hall, the court now says that the first step on appellate review is to ascertain whether there is,...