Land v. State, 01-96-00254-CR

• Court: Texas Court of Appeals
• Writing for the Court: TAFT; TAFT; TAFT
• Citation: Land v. State, 943 S.W.2d 144 (Tex. App. 1997)
• Decision Date: 27 March 1997
• Docket Number: No. 01-96-00254-CR,01-96-00254-CR
• Parties: Gerald Eugene LAND, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)

Page 144

943 S.W.2d 144 Gerald Eugene LAND, Appellant,
v.
The STATE of Texas, Appellee. No. 01-96-00254-CR. Court of Appeals of Texas,
Houston (1st Dist.). March 27, 1997.

Page 145

Brian W. Wice, Houston, for Appellant.

Julie Klibert, Houston, for Appellee.

Before TAFT, MIRABAL and WILSON, JJ.

OPINION

TAFT, Justice.

Appellant, Gerald Eugene Land, was charged in two paragraphs with aggravated assault by causing bodily injury with a deadly weapon; one paragraph alleged an automobile as the deadly weapon, and the other alleged a tire tool. The offense was enhanced by allegations of two prior felony convictions for aggravated assault and robbery. In a general verdict, a jury found appellant guilty and, having found the enhancement allegations true, assessed punishment at 60 years in prison. We address whether the trial court erred in: (1) not submitting unrequested jury instructions on self-defense and voluntariness of his oral statement; (2) not filing written findings of fact and conclusions of law on the voluntariness of his oral statement; and (3) admitting his oral statement in evidence. We also decide whether trial counsel was ineffective for failing to request jury instructions on self-defense and voluntariness of appellant's statement. We affirm.

Facts

Donald Bruggeman had been staying with Donnie May for several weeks. Bruggeman was helping May move to another home which was not ready yet. There were still a few things at the old house and Bruggeman decided to stay there, while May stayed at a nearby motel. Early the following morning, Bruggeman was awakened by a loud crash. He looked outside and saw a minivan that he recognized as belonging to appellant's girlfriend. Bruggeman observed an unknown male sitting in the front passenger's seat. Bruggeman entered the garage and saw appellant removing the tires from a truck inside the garage. After appellant said he had May's permission to take the tires, Bruggeman told appellant he was going to call May to verify.

From a pay phone across the street, Bruggeman saw appellant drive away in the minivan. Bruggeman was unable to reach May by telephone and he began walking to the motel where May was staying. On the way, Bruggeman saw the minivan driven by appellant approaching. Appellant drove over the curb of the feeder road where Bruggeman was walking and struck him head-on with the middle of the front bumper. The impact knocked Bruggeman over the top of the minivan. He landed in the feeder road. Appellant put the minivan in reverse and again struck Bruggeman, nearly severing his little finger, as he tried to roll out of the way.

Bruggeman managed to get up and run into the lobby of the nearby motel. Appellant got out of the minivan and chased Bruggeman into the motel lobby with a tire tool. Appellant struck Bruggeman in the head with the tire tool, knocking him unconscious. Bruggeman woke up in the hospital. His little finger had to be amputated and the injuries to his skull and sinuses required surgery. Bruggeman has a scar on his forehead in the shape of a lug wrench.

Several months later, Detective Norman Welsh picked up appellant for questioning. Welsh told appellant his rights. Appellant

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denied having anything to do with the incident, even after being informed Bruggeman had picked his picture from a photo spread. Appellant finally admitted, however, that he had been at the scene on the night of the offense. On the advice of an assistant district attorney, Welsh arrested appellant. While being transported to the inmate processing center in handcuffs in the back of Detective Welsh's car, appellant said he did it because Bruggeman pulled a knife on him; he also said he had wanted to turn himself in for a long time.

Omission of Unrequested Self-Defense Charge

In point of error one, appellant contends the trial court erred by failing to submit a jury charge on self-defense. Appellant acknowledges he did not request a self-defense instruction, but argues that where the evidence raised the issue, the trial court erred in not submitting it. Appellant claims harm resulted because he was deprived of the only defensive theory available, and the harm was aggravated by the prosecutor's argument urging the jury not to consider the law of self-defense because it was not included in the jury charge.

A. Standard of Review

Article 36.14 of the Code of Criminal Procedure provides, in pertinent part:

... the trial judge shall, before the argument begins, deliver to the jury ... a written charge distinctly setting forth the law applicable to the case.... Before said charge is read to the jury, the defendant or his counsel shall have a reasonable time to examine the same and he shall present his objections thereto in writing, distinctly specifying each ground of objection. Said objections may embody errors claimed to have been committed in the charge, as well as errors claimed to have been committed by omissions therefrom or in failing to charge upon issues arising from the facts, and in no event shall it be necessary for the defendant or his counsel to present special requested charges to preserve or maintain any error assigned to the charge, as herein provided. The requirement that the objections to the court's charge be in writing will be complied with if the objections are dictated to the court reporter in the presence of the court and the state's counsel, before the reading of the court's charge to the jury. Compliance with the provisions of this Article is all that is necessary to preserve, for review, the exceptions and objections presented to the charge and any amendment or modification thereof....

TEX.CODE CRIM. PROC. ANN. art. 36.14 (Vernon Supp.1997).

Article 36.19 of the Code of Criminal Procedure provides:

Whenever it appears by the record in any criminal action upon appeal that any requirement of Articles 36.14, 36.15, 36.16, 36.17 and 36.18 has been disregarded, the judgment shall not be reversed unless the error appearing from the record was calculated to injure the rights of the defendant, or unless it appears from the record that the defendant has not had a fair and impartial trial. All objections to the charge and to the refusal of special charges shall be made at the time of the trial.

TEX.CODE CRIM. PROC. ANN. art. 36.19 (Vernon 1981).

In Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984), the Court of Criminal Appeals interpreted article 36.19 regarding unobjected-to jury charge error as follows:

[I]f no proper objection was made at trial and the accused must claim that the error was "fundamental," he will obtain a reversal only if the error is...