Wilson v. State, No. 13-04-00298-CR (Tex. App. 5/31/2007)
| Decision Date | 31 May 2007 |
| Docket Number | No. 13-04-00298-CR.,13-04-00298-CR. |
| Parties | SONY WADE WILSON, Appellant, v. THE STATE OF TEXAS, Appellee. |
| Court | Texas Court of Appeals |
On Appeal from the 156th District Court of Bee County, Texas.
Before Chief Justice VALDEZ and Justices RODRIGUEZ and AMIDEI.1
Appellant, Sonny Wade Wilson, was found guilty of aggravated assault on a public servant and possession of a deadly weapon in a penal institution. Appellant raises ten issues on appeal. We affirm the judgment of the trial court.
Appellant, an inmate at the McConnell Unit in Bee County, Texas, refused to allow another inmate to be placed in his cell. He protested that he had been harassed by frequent cell moves and the proposed new cell-mate assignment. He was instructed to gather his belongings so he could be transferred to a holding facility pending a hearing of his protest. While being escorted from his cell, appellant resisted being handcuffed, a scuffle ensued, and two correctional officers received bruises, lacerations, and a small puncture wound. The correctional officers present saw a metal object in appellant's hand during the altercation. After the officers subdued appellant, they found two home-made weapons, or "shanks," on the floor in near proximity to appellant. One weapon was a metal rod that was approximately eight and one-half inches in length, sharpened on one end, and bent on the other end with string wrapped around the bent end as a handle. The other weapon, measuring approximately six inches in length, was a plastic razor handle, wrapped with string, with approximately seven razor blades attached to the opposite end.
In his first issue, appellant contends that the trial court erred in failing to instruct the jury that it was to vote "not guilty" if the jury had not reached a "subjective state of near certitude" as to appellant's guilt. Appellant contends that this instruction is supported by Jackson v. Virginia, 443 U.S. 307, 315 (1979), and Victor v. Nebraska, 511 U.S. 1, 22 (1994).
Texas adopted the Jackson reasoning regarding reasonable doubt instructions in Geesa v. State, 820 S.W.2d 154, 165 (Tex. Crim. App. 1991), requiring an instruction on the definition of reasonable doubt, not the "near certitude" standard that appellant suggests. The court of criminal appeals, however, subsequently overruled this requirement on grounds that the instruction was redundant and confusing. Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). The Paulson court concluded "that the better practice is to give no definition of reasonable doubt at all to the jury." Id.; see Hankins v. State, 132 S.W.3d 380, 384 (Tex. Crim. App. 2004). "So long as the court instructs the jury on the necessity that the defendant's guilt be proved beyond a reasonable doubt, the Constitution does not require that any particular form of words be used in advising the jury of the government's burden of proof." Paulson, 28 S.W.3d at 573 (citing Victor, 511 U.S. at 5).
The trial court in the present case instructed the jury in the jury charge that they must find appellant guilty, if proven beyond a reasonable doubt, and not guilty otherwise. Accordingly, we hold that the trial court instructed the jury consistently with the Paulson mandate, and thus, did not err in failing to instruct the jury on the "near certitude" standard of reasonable doubt. Id.; see also Moreno v. State, No. 13-05-325-CR, 2006 Tex. App. LEXIS 5517, at * 16-17 (Tex. App.-Corpus Christi June 29, 2006, pet. ref'd) () (mem. op.) ( an instruction on the "near certitude" standard of reasonable doubt). We overrule appellant's first issue.
In his second issue, appellant contends that the trial court erred in failing to instruct the jury that the trial court was not vouching for the accuracy of a videotape that was played to the jury. The videotape at issue, taken by a correctional officer, depicted the altercation with appellant. Appellant complains that the videotape was unreliable because (1) it contained inaudible noises, (2) there was a "blip" on the video, (3) prison records indicated that a videotape was copied onto a master tape, and (4) the actual time shown imprinted on the videotape, as it was playing, differed from the time announced on a radio heard in the background on the videotape.
We disagree with appellant's contention. Even a seemingly neutral instruction about a particular type of evidence constitutes an impermissible comment on the weight of the evidence in violation of article 36.14 of the code of criminal procedure because such an instruction singles out a particular piece of evidence for special attention. See Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon Supp. 2006); Rocha v. State, 16 S.W.3d 1, 20 (Tex. Crim. App. 2000); Matamoros v. State, 901 S.W.2d 470, 477 (Tex. Crim. App. 1995) (citing Zani v. State, 758 S.W.2d 233, 245 (Tex. Crim. App. 1988)); O'Connell v. State, 17 S.W.3d 746, 749 (Tex. App.-Austin 2000, no pet.). Appellant's requested instruction was not neutral and it singled out the videotape for special attention. Accordingly, the trial court did not err in failing to give the jury a "reliability" instruction. We overrule appellant's second issue.
In his third issue, appellant contends that, under the diminished capacity or diminished responsibility doctrine, he could only be convicted of simple assault since he was suffering from an angry, emotional rage at the time of the altercation, and he therefore lacked the specific intent to have intentionally or recklessly assaulted the correctional officers. Appellant contends that this result is supported by Cowles v. State, 510 S.W.2d 608 (Tex. Crim. App. 1974), andLopez v. State, 651 S.W.2d 413, 416 (Tex. App.-Fort Worth 1983, no pet.).
We must disagree. Subsequent to Cowles, the Texas Court of Criminal Appeals held that a defendant's "lack of normal impulse control is simply not a circumstance recognized by the Legislature to diminish the criminal responsibility of an accused or reduce his crime to a lesser included offense." Wagner v. State, 687 S.W.2d 303, 312 (Tex. Crim. App. 1984) (op. on reh'g). It is clear that there is no "diminished capacity" defense to defeat the element of mens rea during the guilt-innocence phase of trial. Id.; Jackson v. State, 115 S.W.3d 326, 330 (Tex. App.-Dallas 2003), aff'd, 160 S.W.3d 568 (Tex. Crim. App. 2005); Thomas v. State, 886 S.W.2d 388, 391 (Tex. App.-Houston [1st Dist.] 1994, pet. ref'd); De La Garza v. State, 650 S.W.2d 870, 876 (Tex. App.-San Antonio 1983, pet. ref'd). Although Texas does not recognize the doctrine of "diminished capacity" as an affirmative defense, i.e., a lesser form of the defense of insanity, under certain circumstances, a defendant may present relevant evidence for the jury to consider in an attempt to negate the mens rea element alleged in the indictment. See Jackson v. State, 160 S.W.3d 568, 573-74 (Tex. Crim. App. 2005). In the instant case, appellant contends that his emotional state was clearly evidenced in the evidence at trial. Accordingly, the jury was able to consider, and reject, appellant's contention that he lacked the requisite mental state for assault. We overrule appellant's third issue.
In his fourth issue, appellant contends that the correctional officers were acting outside of their scope of authority under section 9.53 of the Texas Penal Code in attempting to forcibly restrain him. Tex. Pen. Code Ann. § 9.53 (Vernon 2003). Appellant contends that there were no safety or security issues present which allowed the correctional officers to use force against him.
A correctional officer is given a privilege to use force by section 9.53 of the Texas Penal Code, entitled "Maintaining Security in a Correctional Facility," which states:
An officer or employee of a correctional facility is justified in using force against a person in custody when and to the degree the officer or employee reasonably believes the force is necessary to maintain the security of the correctional facility, the safety or security of other persons in custody or employed by the correctional facility, or his own safety or security.
See id. If there is record evidence that demonstrates a public officer is unlawfully discharging his official duties at the time a person assaults him, the defendant is entitled to a lesser-included charge. Hall v. State, 158 S.W.3d 470, 471 (Tex. Crim. App. 2005)
However, if a correctional officer's use of force falls within the above definition, he is lawfully discharging his official duties, and, if assaulted at this time, the actor is guilty of assault of a public servant rather than mere misdemeanor assault. See id.
The record evidence shows that appellant believed that he was being harassed by correctional officers with frequent cell moves and a proposed new cell-mate assignment. Eddie Arnold, another inmate, testified that the prison staff "hassled" appellant.
Appellant asserts that he was merely trying to explain his objections to the proposed cell change to the correctional officers when they "grabbed" appellant and wrestled him to the ground. The testimony of the correctional officers indicates otherwise. The evidence is undisputed that appellant refused to be handcuffed while being escorted from his cell. The correctional officers present testified that appellant initiated a physical altercation and two correctional officers received injuries. The officers testified that they acted with the force necessary to maintain their safety and security. Accordingly, we cannot conclude that the correctional officers...
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