Mattox v. State

• Decision Date: 21 April 1994
• Docket Number: No. 01-92-00693-CR,01-92-00693-CR
• Parties: John Eric MATTOX, Appellant, v. The STATE of Texas, Appellee. (1st Dist.)
• Court: Texas Court of Appeals

Page 929

874 S.W.2d 929

John Eric MATTOX, Appellant, v. The STATE of Texas, Appellee.

No. 01-92-00693-CR.

Court of Appeals of Texas,

Houston (1st Dist.).

April 21, 1994.

James Patrick Sharp, Jr., Houston, for appellant.

John B. Holmes, Jr., Mary Lou Keel, Harris County, for appellee.

Before HEDGES, O'CONNOR and ANDELL, JJ.

OPINION

HEDGES, Justice.

Appellant John Eric Mattox was convicted by a jury of aggravated assault. The trial court assessed his punishment at 10-years confinement. We affirm.

Fact Statement

The Complainant's Testimony

The State and the defense presented radically different versions of the events that lead to appellant's conviction. Both agree that appellant shot and wounded the complainant Richard William Stolarski, ¹ on September 17, 1991. From that point, the stories diverge.

Stolarski testified as follows: He had gone to a known drug house at 3329 Napoleon to purchase cocaine. He had seen appellant at this house on many previous occasions. Stolarski left his two companions in a truck parked on the street and walked down a driveway toward appellant's house. He stated that he was not intoxicated from either drugs or alcohol. Hospital records indicated, however, that his blood tested positive for cocaine and that his blood/alcohol reading was .175.

He saw that there were no lights on in the house, indicating to him that drugs were not being sold at that time. Stolarski had turned around to go back to his truck when appellant approached him and said something. Anxious that he might be robbed or that he might be accosted by the police, Stolarski tried to leave hastily. Appellant raised a gun, pulled back the hammer, and pointed it between Stolarski's eyes. Stolarski reached for the gun in an attempt to divert the shot. The gun discharged, and the bullet hit Stolarski in the upper arm, went through an artery in his heart and pierced his lung. Stolarski had no gun and did not threaten appellant with deadly harm. He is now a permanent paraplegic.

Appellant's Version

Appellant and two of his companions testified that Stolarski appeared at his door one afternoon and asked to purchase drugs. Appellant told him that he had the wrong house and instructed him to get off his porch. Stolarski left but returned that night. He appeared "crazy," unkempt, and intoxicated. Once again he asked appellant to sell him drugs, and once again appellant told him that he had the wrong person. At that point, Stolarski attacked appellant with a broken beer bottle and gouged him deeply in the back. Appellant walked 12 feet and retrieved a loaded revolver from beneath the house. He asked Stolarski to leave as he held the gun at his side. Appellant exhibited the gun because he knew of no other way to force Stolarski to leave his yard. When Stolarski grabbed for the gun, the two began struggling over it. The gun discharged during the struggle and struck Stolarski. Appellant did not intend to shoot Stolarski.

Sufficiency of the Evidence

In point of error four, appellant attacks the legal and factual sufficiency of the evidence to support the verdict. This Court does not ordinarily review factual sufficiency claims in criminal cases. This standard applies only to the review of the factual sufficiency of evidence supporting an affirmative defense of the defendant, not the State, must prove. Meraz v. State, 785 S.W.2d 146, 154 (Tex.Crim.App.1990); Moody v. State, 830 S.W.2d 698, 704 (Tex.App.--Houston [1st Dist.] 1992, pet. ref'd). Having no review of an affirmative defense before us, we cannot rule on the factual sufficiency of the evidence.

A legal sufficiency challenge requires us to determine whether, viewing the evidence in the light most favorable to the verdict, any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319, 99 S.Ct. 2781, 2789, 61 L.Ed.2d 560 (1979); Villalon v. State, 791 S.W.2d 130, 132 (Tex.Crim.App.1990). The same standard applies to challenges of both direct and circumstantial evidence. Geesa v. State, 820 S.W.2d 154, 161 (Tex.Crim.App.1991); Ramirez v. State, 822 S.W.2d 240, 244 (Tex.App.--Houston [1st Dist.] 1991, pet. ref'd).

The trier of fact is the exclusive judge of the facts, the credibility of the witnesses, and the weight to be given their testimony. Penagraph v. State, 623 S.W.2d 341, 343 (Tex.Crim.App.1981). The trier of fact is entitled to accept one version of the events and reject another, and to accept or reject any of the witnesses' testimony. Id. We are not authorized to sit as a thirteenth juror and determine fact issues de novo. Moreno v. State, 755 S.W.2d 866, 867 (Tex.Crim.App.1988).

Elements of the Offense

A person commits assault if he (1) intentionally, knowingly, or recklessly causes bodily injury to another; or (2) intentionally or knowingly threatens another with imminent bodily injury. TEX.PENAL CODE ANN. § 22.01(a) (Vernon 1989). Aggravated assault arises when a person commits assault and causes serious bodily injury to another. TEX.PENAL CODE ANN. § 22.02(a)(1) (Vernon Supp.1994).

The jury obviously rejected the defense version of the facts and accepted Stolarski's. Stolarski's testimony taken as true is evidence from which a rational trier of facts could have found the essential elements of aggravated assault beyond a reasonable doubt. We find, therefore, that the evidence is legally sufficient to sustain appellant's conviction.

We overrule point of error four.

Jury Charge Errors

In points of error one, two, three, and five, appellant attacks specific elements of the trial court's charge to the jury. As a general rule, an appellant must object to the jury charge in order to preserve his complaint for appellate review. If appellant properly preserves error in the charge, any harm can provide the basis for a reversal. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984); Turner v. State, 721 S.W.2d 909, 912 (Tex.App.--Houston [1st Dist.] 1986, pet. ref'd). If appellant fails to properly object, however, he must show fundamental error, which is error so egregious that he has been deprived of a fair and impartial trial. Almanza, 686 S.W.2d at 171; Turner, 721 S.W.2d at 912. If we find that the trial court erred, we determine the degree of harm, if any, by measuring the error in light of the entire jury charge, the evidence, argument of counsel, and any other relevant information contained in the record. Almanza, 686 S.W.2d at 174; see also Turner, 721 S.W.2d at 913.

Unpreserved Errors

Appellant did not object to those portions of the jury charge about which he complains in points of error two, three, and five. Therefore, he must show egregious harm to obtain a reversal under these points of error.

Concurrent Cause

In point of error two, appellant argues that the trial court erred (1) in failing to separately define the term "concurrent cause," and (2) in not properly applying the law to the facts of the case. We disagree.

The trial court charged the jury as follows:

Now if you find from the evidence beyond a reasonable doubt that the aggravated assault on Richard William [Stolarski] would not have occurred but for the defendant's conduct, as charged in the indictment, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient, you will find the defendant criminally responsible. Unless you so find beyond a reasonable doubt or if you have a reasonable doubt thereof you will find the defendant not criminally responsible and say by your verdict "Not Guilty."

(Emphasis added.)

A trial court is not required to define a word that is not statutorily defined. Mosley v. State, 686 S.W.2d 180, 182 (Tex.Crim.App.1985); Andrews v. State, 652 S.W.2d 370, 375 (Tex.Crim.App.1983). Words not statutorily defined are given their plain meaning. See Heberling v. State, 834 S.W.2d 350, 354 (Tex.Crim.App.1992).

The term "concurrent cause" is found in the portion of the jury charge that tracks section 6.04 of the Penal Code:

A person is criminally responsible if the result would not have occurred but for his conduct, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient.

TEX.PENAL CODE ANN. § 6.04 (Vernon 1974) (emphasis added). "A concurrent cause is 'another cause' in addition to the actor's conduct, an 'agency in addition to the actor.' " Robbins v. State, 717 S.W.2d 348, 351 n. 2 (Tex.Crim.App.1986) (quoting Searcy & Patterson, Practice Commentary, TEX.PENAL CODE ANN. § 6.04 (Vernon 1974)). We find that the plain meaning of "concurrent cause" is discernable from the context in which it was used in the charge. Therefore, a separate definition was not necessary.

Appellant contends that the trial court erred in failing to apply the term "concurrent cause" to the facts of the case in the jury charge. A trial court is required to apply the law to the particular facts of a case. Williams v. State, 547 S.W.2d 18, 20 (Tex.Crim.App.1977). In this case, the court charged the jury with the following application paragraph:

Now if you find from the evidence beyond a reasonable doubt that the aggravated assault on Richard William [Stolarski] would not have occurred but for the defendant's conduct, as charged in the indictment, operating either alone or concurrently with another cause, unless the concurrent cause was clearly sufficient to produce the result and the conduct of the defendant clearly insufficient, you will find the defendant criminally responsible. Unless you so find beyond a reasonable doubt or if you have a reasonable doubt thereof you will find the defendant not criminally responsible and say by your verdict "Not Guilty."

In support of his argument that the trial court should have related "concurrent cause" to...