Landrian v. State
| Decision Date | 08 October 2008 |
| Docket Number | No. PD-1561-07.,PD-1561-07. |
| Citation | 268 S.W.3d 532 |
| Parties | Carlos LANDRIAN, Appellant, v. The STATE of Texas. |
| Court | Texas Court of Criminal Appeals |
Sam Adamo, Houston, for Appellant.
Carol M. Cameron, Assistant District Attorney, Houston, Jeffrey L. Van Horn, State's Attorney, Austin, for State.
We address the jury unanimity requirement in the context of an aggravated-assault prosecution.1 The evidence at trial showed that Luis Brizuela went to a company Christmas party hosted by appellant's boss. As the party ended, appellant and a drunk "party-crasher" got into a fight outside. Glass from a broken bottle that appellant threw at or in Mr. Brizuela's direction hit him and caused Mr. Brizuela to lose his left eye. Appellant was charged with the aggravated assault of Luis Brizuela by either (1) intentionally or knowingly causing bodily injury by using a deadly weapon, a bottle, or (2) recklessly causing serious bodily injury by throwing a bottle in his direction. The jury was charged in the disjunctive, and it returned a general verdict. The First Court of Appeals held that the trial judge erred because he did not require the jury to reach a unanimous verdict on whether appellant intentionally or knowingly caused bodily injury by using the bottle as a deadly weapon or whether he recklessly caused serious bodily injury by throwing the bottle in Mr. Brizuela's direction.2
We conclude that the trial judge did not err. The jury charge required the jury to unanimously find that appellant caused bodily injury to Luis Brizuela. The gravamen of this result-oriented offense is "causing bodily injury." The jury did not have to be unanimous on the aggravating factors of whether it was a "serious" bodily injury or whether appellant used a deadly weapon.
The evidence at trial was hotly contested. Luis Brizuela testified that he went to a company Christmas party at the Camino Real Apartments clubhouse on December 19, 2003, to pick up his cousin who worked for the company. Mr. Brizuela went inside and visited with friends, including appellant, for a while. Everyone was drinking,3 and Mr. Brizuela had two beers. He got a call on his cell phone, so he went outside and walked around to the back of the clubhouse to answer it. After he finished his call, he returned to the front of the clubhouse where he saw a person lying on the ground. It was Luis Miguel, whom he had met earlier at the party. Luis Miguel was drunk and "asleep." He had blood all over him. When Mr. Brizuela was five feet from the front door, he saw appellant come outside. Appellant threw a bottle at him. It hit him in the left eye. His eye began to bleed and it hurt a great deal. Soon paramedics arrived and took him to the hospital. He had emergency surgery, but about a week later, he had to have another operation to remove his left eye. Other witnesses for the State largely corroborated Mr. Brizuela's account of the incident, though some of them testified that appellant threw the bottle at Luis Miguel, but it hit Luis Brizuela instead. One witness stated that appellant smashed the beer bottle against the wall and then threw it into the air, not aiming at anyone in particular.
Witnesses for the defense, including appellant, testified that Mr. Brizuela came to the party with two other men who were drunk. They were loud and angry. The security guard told them to leave the clubhouse and they did so, but they remained outside drinking. As the party ended, appellant helped clean up the clubhouse. When he went outside to gather beer bottles, Luis Miguel attacked him and jumped on top of him. Appellant grabbed an empty beer bottle and "cracked" Luis Miguel on the head with it. The bottle exploded. Luis Miguel was stunned, but he lunged toward appellant again. Other guests separated the two men, and appellant went back inside.4 Appellant testified that he had acted solely in self-defense. He said that he had no idea that Luis Brizuela had been hurt until the next day when someone told him that Mr. Brizuela had been hit with a piece of glass during the altercation. Appellant was very concerned and tried to call and visit Mr. Brizuela several times, but he did not answer the door or return appellant's phone calls.
Dr. Benz testified that he performed the initial operation on Mr. Brizuela's eye. He thought that the injury was more consistent with an act of throwing a broken bottle into the eye than with the act of breaking a beer bottle over someone's head and a glass shard flying into the eye. Dr. Benz formed this opinion because
Officer Le, the initial investigator, testified that Mr. Brizuela told him, a day after the incident, that it was "an accident." Mr. Brizuela said that appellant threw the beer bottle at another man and a shard of glass hit Mr. Brizuela in the face. Officer Le also said that a bottle thrown or "slashed" at another person could cause death or serious bodily injury.
The trial judge instructed the jury on aggravated assault and self-defense. The abstract portion of that charge read as follows:
A person commits the offense of assault if the person intentionally, knowingly, or recklessly causes bodily injury to another.
A person commits the offense of aggravated assault if the person commits assault, as hereinbefore defined, and the person:
(1) causes serious bodily injury to another; or
(2) uses or exhibits a deadly weapon during the commission of the assault.
In the application section, the trial judge submitted the two aggravating factors in disjunctive paragraphs.5 The jury was not required to be unanimous on which aggravating factor it had found, "serious bodily injury" or "use of a deadly weapon." The trial judge also submitted a special "deadly weapon" issue because he was concerned about a potential unanimity problem. He reasoned that, if the jury found that appellant had used the bottle as a deadly weapon, it would necessarily be unanimous on the second aggravating factor, causing bodily injury by using a deadly weapon.6
After lengthy deliberations and several notes requesting clarification, the jury returned a "guilty" verdict. It also found that appellant had used a deadly weapon. The jury assessed a sentence of seven years' imprisonment, but recommended community supervision.
On appeal, appellant argued that he was "denied the right to a unanimous jury verdict because the charge allowed the jury to convict him of aggravated assault without unanimously determining whether [he] (1) intentionally or knowingly caused bodily injury with a deadly weapon or (2) recklessly caused serious bodily injury."7 The court of appeals agreed, concluding that "the jury charge presented two types of aggravated assault without requiring the jury to determine unanimously whether appellant caused serious bodily injury as alleged in paragraph one or whether appellant caused bodily injury as alleged in paragraph two."8 It held that the error was harmful and remanded the case for a new trial.9
Under the Texas Constitution and Code of Criminal Procedure, a Texas jury must reach a unanimous verdict.10 The jury must agree that the defendant committed one specific crime.11 That does not mean, however, that the jury must unanimously find that the defendant committed that crime in one specific way or even with one specific act.12 The Legislature has considerable discretion in defining crimes and the manner in which those crimes can be committed. That discretion is limited only by the Due Process Clause of the federal constitution and the Due Course of Law provision of the Texas Constitution.13
In deciding what elements and facts a jury must unanimously agree on, courts implement the legislative intent behind the penal provision. Both Texas and federal courts have held that the jury must be unanimous in finding that the defendant committed a specific statutory crime.14 But it is the legislature, not the courts, that defines the forbidden act, the required culpability, and the particular result, if any.15
The Texas Legislature has defined the crime of assault in Section 22.01 of the Penal Code. Subsection (a) of that provision sets out three separate and distinct assaultive crimes, two of which are relevant to the present discussion:
(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily injury to another, including the person's spouse;
(2) intentionally or knowingly threatens another with imminent bodily injury, including the person's spouse[.]
Subsection (1)—"bodily injury" assault is a result-oriented assaultive offense and normally a Class A misdemeanor. Subsection (2) is conduct-oriented, focusing upon the act of making a threat, regardless of any result that threat might cause.16 It is normally a Class C misdemeanor.17
Section 22.02 of the Penal Code then defines the crime of aggravated assault as being an assault under Section 22.01, and the person
(1) causes serious bodily injury to another, including the person's spouse, or
(2) uses or exhibits a deadly weapon during the commission of the assault.18
Normally, Subsection (1) may act as an aggravating factor only for "bodily injury" assault under Section 22.01(a)(1); absent special circumstances,19 one cannot cause serious bodily injury solely by making a threat. But the use of a deadly weapon may act as an aggravating factor for "bodily injury" assault under Section 22.01(a)(1), as well as assault by threat under Section 22.01(a)(2). Normally, the offense of aggravated assault, regardless of which aggravating factor is used, is a second-degree felony.20
The gravamen of the offense of aggravated assault is the specific type of assault defined in Section 22.01....
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...but injures or harms a different person. Landrian v. State, 263 S.W.3d 332 (Tex.App.— Houston [1st Dist.] 2007), rev’d on other grounds 268 S.W.3d 532 (Tex. Crim. App. 2008); Manrique v. State, 994 S.W.2d 640 (Tex. Crim. App. 1999). Though euphemistically called “transferred intent, ” the c......