William Graeme Ford v. the State of Texas

• Decision Date: 15 February 2001
• Citation: William Graeme Ford v. the State of Texas, 38 S.W.3d 836 (Tex. App. 2001)
• Parties: <!--38 S.W.3d 836 (Tex.App.-Houston 2001) WILLIAM GRAEME FORD, Appellant v. THE STATE OF TEXAS, Appellee NO. 14-99-00683-CR In The Fourteenth Court of Appeals
• Court: Texas Court of Appeals

Page 836

38 S.W.3d 836 (Tex.App.-Houston [14th Dist.] 2001)

WILLIAM GRAEME FORD, Appellant v THE STATE OF TEXAS, Appellee

NO. 14-99-00683-CR

In The Fourteenth Court of Appeals

February 15, 2001.

Rehearing Overruled March 8, 2001.

On Appeal from the 184th District Court Harris County, Texas Trial Court Cause No. 809884

[Copyrighted Material Omitted]

[Copyrighted Material Omitted] Panel consists of Justices Fowler, Edelman and Baird.^*

OPINION

Charles F. Baird, Justice (Assigned).

Appellant was charged by indictment with the offense of aggravated assault. The jury acquitted appellant of that offense but convicted him of the lesser offense of deadly conduct. The trial court assessed punishment at one year confinement probated for two years and a fine of $500.00. Appellant raises two points of error. We affirm.

I. Factual Summary.

The record evidence established the following: The complainant was a frequent customer at a neighborhood icehouse. Routinely after work, she would come to the bar along with her dog. The complainant was permitted to bring her dog inside the premises. Both the complainant and her dog were well known to the patrons of the icehouse.

On December 26, 1997, appellant, who was not a regular customer, entered the icehouse. As he approached the bar, appellant's attention was drawn to the complainant's dog. Although there is conflicting testimony as to whether the dog acted in an aggressive manner, there is no dispute that appellant kicked the dog.

A patron approached appellant and a scuffle ensued in which appellant pulled a knife described as either a regular pocket knife with a three inch blade or a switchblade with a blade of approximately five inches. Two witnesses formed the opinion the knife was a deadly weapon. During the scuffle, the complainant moved from her chair toward the two men. The complainant testified she was attempting to retrieve the dog. Other testimony suggested she attacked appellant from the rear.

Although no one actually saw appellant cut the complainant's arm, that fact was not disputed as appellant was the only person who could have caused the injury because he was the only one with a knife. The wound was described as six inches long and approximately three inches deep, cutting through the tendons, arteries, and muscles, down to the bone. The wound required surgery and subsequent therapy. The therapist opined the injury would result in permanent impairment. This opinion was confirmed by the complainant who testified it would take two to five years to regain use of her hand and arm, but that the recovery would never be one hundred per cent.

A State's witness described appellant's conduct as dangerous. And a defense witness admitted that wielding a knife as appellant did could be dangerous. The jury was instructed on the law of aggravated assault. In addition, the State requested and received, over appellant's objection, an instruction on the lesser included offense of deadly conduct.

II. Lesser Included Offenses

A. Who May Request Charge on Lesser Offense

As a general rule, the defendant, seeking to limit his criminal liability, is the party requesting a charge on the lesser offense pursuant to Article 37.09 of the Code of Criminal Procedure. However, the State is equally entitled to seek such a charge when it feels the proof has fallen short of proving the charged offense. See Arevalo v. State, 943 S.W.2d 887, 890 (Tex. Crim. App. 1997). Finally, the trial court has the duty and responsibility to instruct on the "law applicable to the case." See Tex. Code Crim. Proc. Ann. art. 36.19. In discharging this duty, the trial court is authorized to sua sponte include a charge on a lesser offense; a trial court is not restricted to submitting lesser included offenses only when the defendant has properly requested them. See McQueen v. State, 984 S.W.2d 712, 717 (Tex. App.--Texarkana 1998, no pet.). This is true even if the defendant objects to submission of the charge to the jury. See ibid. (citing Humphries v. State, 615 S.W.2d 737, 738 (Tex. Crim. App. [Panel Op.] 1981)). In the instant case, the lesser charge was requested by the State.

B. Preservation of Error

As noted above, generally the defendant affirmatively requests a charge on a lesser included offense. This request must be made in writing or "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." See Tex. Code Crim. Proc. Ann. arts. 36.14 and 36.15. These statutory provisions do not require the requested charge to be "in perfect form." See Chapman v. State, 921 S.W.2d 694, 695 (Tex. Crim. App. 1996). Rather, the request need only be "sufficient to call the trial court's attention to the omission in the court's charge." See ibid. (quoting Stone v. State, 703 S.W.2d 652, 655 (Tex. Crim. App. 1986)). If the trial court grants the request and instructs the jury on the lesser charge, the defendant is estopped from complaining of its inclusion on appeal. See Hirad v. State, 14 S.W.3d 351, 352 (Tex. App.--Houston [14th Dist.] 2000, pet. ref'd).¹ However, if the trial court refuses to include the requested charge, the failure to do so preserves the issue for appeal. See Tex. Code Crim. Proc. Ann. arts. 36.14 and 36.15.

The question of error preservation is more complicated when the trial court provides the charge sua sponte or at the State's request. The trial court does not have jurisdiction to convict a defendant of an offense not alleged in the charging instrument. See Jacob v. State, 864 S.W.2d 741, 742 (Tex. App.--Houston [14th Dist.] 1993) aff'd 892 S.W.2d 905 (Tex. Crim. App. 1995). However, the trial court's jurisdiction extends to all lesser "included" offenses as defined by article 37.09. See Day v. State, 532 S.W.2d 302, 315 (Tex. Crim. App. 1975) (opinion on rehearing). The limitations of article 37.09 satisfy the requirements of due process and notice because the lesser included offense must necessarily be included within the greater. See Jacob, 892 S.W.2d at 907. Therefore, the trial court has jurisdiction over the charged offense and all lesser included offenses. If the lesser offense is a lesser "included" offense the appellate court should determine whether the charge was warranted. If the charge is not warranted, then the issue is one of charge error and preservation of that issue devolves into a question of harm, the standard for which is determined by whether the defendant objected to the charge on the lesser included offense. See Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App. 1984) ("some harm" vs. "egregious harm" standards for determining harm).

However, not every lesser offense is a lesser "included" offense. If the lesser offense is not a lesser "included" offense, the trial court is without jurisdiction to convict on that offense. Consequently, in such a circumstance, an objection is not required to preserve the issue because jurisdictional matters may be raised at any time by the parties or by the court. See Martinez v. State, 5 S.W.3d 722, 725 (Tex. App.--San Antonio 1999, no pet.) (citing Ex parte Smith, 650 S.W.2d 68, 69 (Tex. Crim. App. 1981); Lackey v. State, 574 S.W.2d 97, 100 (Tex. Crim. App. 1978); Casias v. State, 503 S.W.2d 262, 265 (Tex. Crim. App. 1973)). This is so because any action taken by a court without jurisdiction is void. See ibid. (citing Foster v. State, 635 S.W.2d 710, 721 (Tex. Crim. App.1982)). In the instant case, the State requested the instruction on the lesser offense and it was included in the court's charge over appellant's objection.

C. When Lesser Included Charge Warranted

Determining whether a charge on a lesser included offense is warranted presents a dual inquiry. First, is the lesser offense included within the proof necessary to establish the offense charged? See Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex. Crim. App. 1993). Second, if so, is there some record evidence from which a jury could rationally find that if the defendant is guilty, he is guilty only of the lesser offense? See ibid.

Under the first prong, whether a lesser offense is actually a lesser "included" offense is governed by article 37.09, which provides an offense is a lesser included offense if:

(1) it is established by proof of the same or less than all of 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.

See Tex. Code Crim. Proc. Ann. art. 37.09 (emphasis added). Each definition of a lesser included offense in article 37.09 is stated with reference to "the offense charged," and specifically states the manner in which the lesser included offense differs from the offense charged.² If no subsection of article 37.09 applies, the lesser offense is not a lesser "included" offense as a matter of law and the inquiry is over.³

On the other hand, if the first prong is satisfied, the court must determine if there is some record evidence from which a jury could rationally find that if the defendant is guilty, he is guilty only of the lesser offense. See Rousseau, 855 S.W.2d at 672-73. The second prong requires an examination of the record to determine if the lesser included offense was raised by the evidence, whether produced by the State or the defendant and whether it be strong, weak, unimpeached, or contradicted. See Bell v. State, 693 S.W.2d 434, 442 (Tex. Crim. App. 1985). It is then the jury's duty, under the proper instructions, to determine whether the evidence is credible and supports the lesser included offense. See ibid.

D. Case of...