Appeal from the 228th District Court Harris County, Texas
Trial Court Cause No. 1336966
consists of Chief Justice Frost and Justices Christopher and
Jewell. (Jewell, J., concurring) (Christopher, J.,
THOMPSON FROST CHIEF JUSTICE.
Joseph Anthony Smith challenges his conviction and punishment
for aggravated robbery with a deadly weapon. This three-issue
appeal divides the panel three ways on the issue of whether
the trial court erred, during the punishment phase of trial,
in charging the jury that voluntary intoxication is not a
defense to the commission of a crime. The author of this
opinion finds no error, a concurring justice finds harmless
error, and a dissenting justice finds harmful error. The
upshot is a plurality decision on this issue. Today, the
court also considers whether the trial court erred in failing
to charge the jury on a lesser-included offense during the
guilt/innocence phase of the trial and whether the trial
court reversibly erred in overruling appellant's
objection to the prosecutor's closing argument. A
majority of the court finds against appellant on both issues.
Factual and Procedural Background
complainant was backing his car out of the driveway heading
towards the street around 5:00 a.m. when a man approached him
wielding a gun. The man tapped the driver's-side window
with the gun. Believing he was being robbed, the complainant
handed the man his wallet and keys, saying, "Please take
my wallet and keys. Please don't hurt me." The
assailant asked the complainant if anyone else was home, and
although both of the complainant's parents were at home,
the complainant replied that nobody was at home because he
did not want the assailant to think anyone was in the house.
The assailant told the complainant to get back in the car,
but the complainant refused. At that moment, a car drove down
the street, distracting both the assailant and the
complainant enough that the assailant moved the gun away from
the complainant's face. The complainant grabbed the
assailant's hand and began screaming for help while
fighting with him for the gun. The two struggled, with the
assailant attempting to muffle the complainant's screams.
driving down the street did not stop to help the complainant,
but the complainant's neighbor heard his screams and came
outside with a gun. The neighbor ordered the assailant to
drop the gun. The assailant released the gun and ran away.
neighbor pursued the assailant, telling him to get on the
ground. The assailant did not comply, but a second neighbor
came out of his home with a weapon and pursued the assailant,
who eventually stopped running. The second neighbor brought
the assailant back down the street and forced him to wait
until police arrived. The complainant brought the
assailant's gun into the complainant's house and
eventually turned the gun over to responding police officers.
was charged with aggravated assault with a deadly weapon. He
pleaded "not guilty."
complainant and the first neighbor described what happened
during their testimony at trial in the guilt/innocence phase.
The trial court also admitted into evidence recordings of
several phone calls appellant placed while he was
incarcerated. In these phone calls, appellant repeatedly
discussed the incident, characterizing it as a robbery, and
explaining that his motivation was his lack of money.
asked the trial court to charge the jury on the
lesser-included offense of aggravated assault. The trial
court denied appellant's request. The jury found
appellant guilty as charged.
the punishment phase of the trial, the State presented
evidence of other bad acts the State alleged appellant had
committed, including an assault and a capital murder.
Appellant introduced evidence that he had used the drug Xanax
from his youth up to the point of appellant's
incarceration. Appellant presented an expert witness who
testified about the effects of Xanax use. Over
appellant's objection, the trial court included in the
punishment-phase jury charge an instruction that voluntary
intoxication is not a defense to the commission of a crime.
the State's closing argument in the punishment phase, the
prosecutor referred to appellant's reaction to testimony
from the sister of the man killed in the capital murder
allegedly committed by appellant. The trial court overruled
jury assessed punishment at confinement for life.
Issues and Analysis
raises three issues on appeal, challenging his conviction in
the first issue (asserting jury-charge error) and his
punishment in the second and third issues (asserting error in
the punishment-phase jury charge and closing arguments).
Because the second issue divides the panel three ways, we
begin with it.
Punishment-Phase Jury Instruction
argues in his second issue on appeal that the trial court
erred in charging the jury that voluntary intoxication is not
a defense to the commission of a crime.
the punishment phase of trial, the State introduced evidence
that appellant had committed an extraneous offense, capital
murder, the day before the aggravated robbery. The record
contains evidence that appellant was addicted to Xanax, and
intoxicated by Xanax, at the time of the charged
aggravated-robbery offense and the time of the alleged
capital murder. Appellant's sole punishment witness, Dr.
Terry Rustin, testified that Xanax can cause aggressive or
criminal behavior that an individual otherwise would not
exhibit because the drug reduces inhibitions and causes
people not to worry about the consequences of their actions.
State asked the trial court to charge the jury that voluntary
intoxication is not a defense to the charged
aggravated-robbery offense, for which appellant already had
been convicted. Appellant objected on the grounds that the
instruction was not appropriate in the punishment phase and
would cause the jury to ignore Dr. Rustin's testimony.
The trial court overruled appellant's objection. But, the
trial court told the jury, by written instruction, that the
jury could consider all the facts shown by the evidence in
assessing appellant's punishment.
charge, the trial court instructed the jury that
"voluntary intoxication does not constitute a defense to
the commission of a crime. 'Intoxication' means
disturbance of mental or physical capacity resulting from the
introduction of any substance into the body." After
giving the voluntary-intoxication instruction, the trial
court instructed the jury that "the mere presence of the
defendant at the scene of the offense is not sufficient to
conclude the accused committed the offense beyond a
reasonable doubt." Following that instruction, the trial
court told the jury that it could consider evidence of an
extraneous crime or bad act in assessing punishment even if
the defendant had not yet been charged with or finally
convicted of the crime or act only if the State had shown
beyond a reasonable doubt that the defendant committed the
extraneous crime or bad act or that it is one for which the
defendant could be held criminally responsible. Towards the
end of the charge, the trial court instructed the jury that
"in fixing the defendant's punishment . . . you may
take into consideration all the facts shown by the evidence
admitted before you in the full trial of this case."
reviewing a complaint of jury-charge error, we first
determine whether error occurred, and, if we find error, then
we evaluate whether the error caused sufficient harm to
require reversal. See Ngo v. State, 175 S.W.3d 738,
743 (Tex. Crim. App. 2005); Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1984).
jury charge correctly stated that voluntary intoxication is
not a defense to the commission of a crime. See Tex.
Penal Code § 8.04(a) (West, Westlaw through 2015 R.S.).
Even so, evidence of temporary insanity caused by
intoxication may be introduced by the actor in mitigation of
the penalty attached to the offense for which the actor is
being tried. See id. § 8.04(b); Martinez v.
State, 17 S.W.3d 677, 691 n.14 (Tex. Crim. App. 2000).
Appellant did not argue that at the time of the charged
offense he was temporarily insane because of intoxication,
that he did not know his conduct was wrong, or that he was
incapable of conforming his conduct to the law. Nor did
appellant ask the trial court to give an instruction that the
jury consider temporary insanity caused by intoxication as
mitigating evidence, and appellant did not argue below or on
appeal that he should have received such an instruction.
challenged statement-that voluntary intoxication is not a
defense to the commission of a crime-is a correct statement
of the law. See Tex. Penal Code §8.04(a). But,
it did no work in the punishment-phase charge.
Haley v. State, in the punishment phase, the jury
does not determine beyond a reasonable doubt whether the
defendant is guilty of any criminal offense, nor does the
jury determine whether any alleged extraneous crime or bad
act constitutes a criminal offense. See Haley v.
State, 173 S.W.3d. 510, 514-15 (Tex. Crim. App. 2005).
Though the voluntary-intoxication instruction was unnecessary
and out of place, it accurately stated the law and did not
tell the jury to disregard evidence of voluntary intoxication
in assessing punishment. See Tex. Penal Code §
8.04(a); Haley, 173 S.W.3d. at 514-15. If the jury
believed it could not consider the voluntary-intoxication
evidence in mitigation of appellant's punishment, as the
dissenting justice concludes, then that belief could not have
been based on the words in the charge.
charge plainly stated the jury could consider all the
evidence. An instruction that is "clear and unambiguous
on its face" does not amount to error. The dissenting
justice asserts that the Court of Criminal Appeals's
opinion in Taylor v. State compels the conclusion
that an instruction under Penal Code section 8.04(a) does not
belong in a punishment-phase charge. The Taylor court
concluded that the trial court did not err in including a
section 8.04(a) instruction in the guilt/innocence charge,
and the high court noted that this subsection is directed to
the guilt/innocence phase. See Taylor v. State, 885
S.W.2d 154, 156-58 (Tex. Crim. App. 1994). But, the
Taylor court did not say that including a section
8.04(a) instruction in a punishment-phase charge
automatically amounts to error. See id. The
Taylor precedent does not mandate a finding of
charge error in today's case.
every out-of-place instruction infuses the charge with error.
In Gomez, this court held that the trial court did
not abuse its discretion in refusing to give a self-defense
instruction in the punishment phase. See Wesbrook v.
State, 29 S.W.3d 103, 122 (Tex. Crim. App. 2000);
Gomez v. State, 380 S.W.3d 830, 837- 38 (Tex.
App.-Houston [14th Dist.] 2012, pet. ref'd). Yet, this
holding does not mean that a trial court per se errs by
including a section 8.04(a) instruction in the
punishment-phase charge. See Gomez, 380 S.W.3d at
837-38. Sometimes trial courts include unnecessary
instructions in the jury charge. The surplus may render the
charge imperfect without creating error.
determine if the misplaced instruction amounts to error, we
must look at the reasons it would be wrong to include the
instruction in the charge. If those reasons are not
implicated, then the inclusion of the out-of-place
instruction cannot fairly be characterized as error. In
today's case appellant points to jury confusion over the
ability to consider mitigating evidence as the reason the
trial court erred in including the challenged instruction. In
this context, jury confusion would equate to charge error.
And, conversely, if the plain language of the challenged
instruction could not have confused a reasonable jury, then
the instruction, though misplaced, would not amount to error.
the charge, the trial court told the jury that, in assessing
appellant's punishment, the jury could consider all of
the evidence. See Casey v. State, 215 S.W.3d 870,
886-87 (Tex. Crim. App. 2007); Riddle v. State, 888
S.W.2d 1, 8 (Tex. Crim. App. 1994). And, the evidence
included Dr. Rustin's testimony about appellant's
voluntary intoxication on Xanax. Because nothing in the
charge contradicted the statement that the jury could
consider this evidence, a reasonable jury could not have
believed, as appellant urges, that the jury had to disregard
Dr. Rustin's testimony. The plain wording of the
punishment-phase charge belies appellant's argument that
the voluntary-intoxication instruction led the jury to
believe it could not consider appellant's voluntary
intoxication in fixing appellant's punishment. See
Casey, 215 S.W.3d at 886-87; Riddle, 888 S.W.2d
at 8. To conclude otherwise, this court would have to say
that a charge that tells the jury it can consider all
evidence means the jury could not consider some evidence.
like everyone else, are trapped in the human condition. All
are subject to "potential confusion" all the time.
But, we must not presume that jurors will be misled by clear
and unambiguous instructions. Instead, we should credit the
jury with understanding plain English and with being able to
distinguish between voluntary intoxication as a defense to a
crime and voluntary intoxication as mitigating circumstances
for punishment. That an instruction is meant for the
guilt/innocence phase of trial rather than the punishment
phase does not mean it is error per se to include it in the
punishment-phase charge. When the challenged instruction
could not mislead the jury, its inclusion is not cognizable
second issue is overruled.
Denial of Jury Instruction on Lesser-Included
Texas Code of Criminal Procedure provides, "[i]n a
prosecution for an offense with lesser included offenses, the
jury may find the defendant not guilty of the greater
offense, but guilty of any lesser included offense."
Tex. Code Crim. Proc. art. 37.08 (West, Westlaw through 2015
R.S.). We determine whether a defendant is entitled to a
lesser-included offense instruction by conducting a two-step
analysis. Sweed v. State, 351 S.W.3d 63, 67 (Tex.
Crim. App. 2011). In the first step, we decide whether the
purported lesser-included offense falls within the proof
necessary to establish the offense charged. Id. at
68. To make this determination, we compare the statutory
elements and any descriptive averments in the indictment for
the greater offense with the statutory elements of the lesser
offense. Id. Because a defendant cannot be held to
answer a charge not contained in the indictment brought
against him, the evidence produced at trial does not
determine the lesser-included offense.
State indicted appellant for aggravated robbery with a deadly
weapon, alleging that while in the course of committing theft
of property owned by the complainant, and with intent to
obtain and maintain control of the property, appellant
intentionally and knowingly threatened the complainant and
placed him in fear of imminent bodily injury and death while
exhibiting a deadly weapon, namely, a firearm. See
Tex. Penal Code Ann. §§ 29.02, 29.03 (West, Westlaw
through 2015 R.S.). A person commits aggravated assault if
the individual commits assault by intentionally or knowingly
threatening another with imminent bodily injury, and the
individual uses or exhibits a deadly weapon during the
commission of the assault. See Tex. Penal Code Ann.
§§ 22.01(a), 22.02(a) (West, Westlaw through 2015
R.S.). The proof necessary for the elements of aggravated
assault with a deadly weapon is encompassed within the proof
necessary to establish the aggravated robbery charged in the
indictment. See Zapata v. State, 449 S.W.3d 220, 225
(Tex. App.-San Antonio 2014, no pet.).
second step of the lesser-included-offense analysis is to
determine if there is some evidence from which a rational
jury could acquit the defendant of the greater offense while
convicting the defendant of the lesser-included offense.
Sweed, 351 S.W.3d at 68. The evidence must establish
the lesser-included offense as a "valid rational
alternative to the charged offense." Id.
(quoting Segundo v. State, 270 S.W.3d 79, 90-91
(Tex. Crim. App. 2008). We review all of the evidence
presented at trial. Id. Anything more than a
scintilla of evidence is sufficient to entitle a defendant to
a lesser-included-offense charge. Id. Although a
scintilla of evidence is a low threshold, "it is not
enough that the jury may disbelieve some crucial evidence
pertaining to the greater offense, but rather, there must be
some evidence directly germane to the lesser-included offense
for the finder of fact to consider before an instruction on a
lesser-included offense is warranted." Id.
(quoting Skinner v. State, 956 S.W.2d 532, 543 (Tex.
Crim. App. 1997)). This standard may be satisfied if some
evidence refutes or negates other evidence establishing the
greater offense or if the evidence presented is subject to
different interpretations. Id.
first issue, appellant argues that because the complainant
testified that the complainant gave appellant his wallet
before appellant could say anything, and because the
complainant's wallet was found in the grass near the site
of the incident, rather than on appellant's person, the
evidence was subject to the interpretation that appellant
intended to commit the lesser-included offense of aggravated
assault rather than aggravated robbery. Appellant
acknowledges that he made a phone call from jail in which he
stated that he intended to go inside the complainant's
home and take things, but appellant argues that the phone
call is unclear.
complainant testified at trial that he handed his wallet to
appellant, but then he and appellant began struggling over a
gun. Appellant eventually ran away from the scene. This
testimony suggests that appellant dropped the
complainant's wallet during the ensuing struggle, not
that appellant was uninterested in the complainant's
wallet. This conclusion is bolstered by appellant's
statements made after his incarceration.
made many phone calls in which he discussed the incident. In
all of these phone calls, appellant described the incident as
an aggravated robbery. In several phone calls, appellant
referred to the complainant as either the "dude who was
getting aggravatedly [sic] robbed" or the
"[expletive] I aggravatedly [sic] robbed." In one
phone call, appellant stated that he intended to put the
complainant back in the car so he could go inside the house
and see what was there. In a phone call between appellant and
his father, appellant commented that he did not have anyone
to blame "except being broke and stupid." In a
phone conversation between appellant and his mother,
appellant's mother stated that she did not understand why
appellant committed the crime, noting that if he was trying
to get her attention, appellant had her attention a long time
ago. Appellant responded, "it's all about the
money." Appellant explained that he was late on his
rent, did not have a phone, and could not afford to pay for
electricity to run the lights. In a phone call with a friend,
the friend told appellant that appellant should have stayed
home, but he got greedy. In yet another phone call, appellant
stated that if his accomplice had not left in the middle of
the crime, appellant would have the complainant's phone
and the complainant's cash and property, but, instead,
because the accomplice left, and appellant was unable to
complete the crime as intended, appellant was in trouble.
record also reveals that appellant did not know the
complainant and there was no evidence of any motive to
assault the complainant other than to take the
complainant's property. The evidence presented to the
jury was subject to only one interpretation: appellant sought
to rob the complainant. Accordingly, the trial court did not
err in failing to charge the jury on the lesser-included
offense of aggravated assault. See Stewart v. State,
995 S.W.2d 251, 254 (Tex. App.- Houston [14th Dist.] 1999, no
pet.) (holding trial court did not err in refusing
instruction on lesser-included offense when testimony showed
defendant was guilty of charged offense or no offense at
all). We overrule appellant's first issue.
Punishment-Phase Jury Argument
third issue, appellant asserts that the prosecutor made an
improper comment on the demeanor of a non-testifying witness
during closing argument in the punishment phase of trial and
that this utterance amounted to a comment on appellant's
failure to testify. During the punishment phase of trial, the
State introduced evidence that the day before the charged
offense appellant killed a man by shooting him with a gun at
close range. During closing argument the prosecutor stated:
You also heard about the capital murder of [another
individual], which was committed on February 12th of 2012.
You heard that that was a contact wound to the side of the
head. Imagine what the end of [that individual's] life
was like. You heard his sister testify about the funeral
service and having to cover up that wound in the head, and
you heard about his children. And I hope that during that
testimony you got an opportunity to see how the defendant
reacted to that. Nothing, absolutely nothing; never a sign of
remorse, never; never a sign of remorse. That is just plain
wrong. That is evil, that is something you don't want in
objected that the prosecutor's statements constituted an
improper argument, outside the record, about how appellant
looked during testimony. The trial court overruled
appellant's objection. Presuming for the sake of argument
that the trial court erred in overruling appellant's
objection, the issue provides no basis for relief on appeal.
we presume for purposes of this analysis that the
prosecutor's comment violated appellant's privilege
against self-incrimination, we also presume the error was of
a constitutional magnitude and conduct our assessment of harm
using the standard set forth in Texas Rule of Appellate
Procedure 44.2(a). See Snowden v. State, 353 S.W.3d
815, 818 (Tex. Crim. App. 2011); Crayton v. State,
463 S.W.3d 531, 536 (Tex. App.-Houston [14th Dist.] 2015, no
pet.). Under this presumption, we must reverse the judgment
unless we conclude beyond a reasonable doubt that the
presumed error did not contribute to the defendant's
conviction or punishment. See Tex. R. App. P.
44.2(a); Snowden, 353 S.W.3d at 818;
Crayton, 463 S.W.3d at 536.
reviewing court, we must calculate as nearly as possible the
probable impact of the error on the jury in light of the
record as a whole. Wall v. State, 184 S.W.3d 730,
746 (Tex. Crim. App. 2006). We consider factors such as the
nature of the error, whether the State emphasized the error,
the probable implications of the error, and the weight the
jury likely would have assigned to the error in the course of
its deliberations. See Snowden, 353 S.W.3d at 822,
Crayton, 463 S.W.3d at 536. These factors are not
exclusive; other considerations also may inform the harm
analysis. See Thompson v. State, 426 S.W.3d 206, 211
(Tex. App.-Houston [1st Dist.] 2012, pet. ref'd). If the
reviewing court finds a reasonable likelihood that the error
materially affected the jury's deliberations, the trial
court's error is not harmless beyond a reasonable doubt.
See Neal v. State, 256 S.W.3d 264, 284 (Tex. Crim.
Nature and emphasis of the presumed error
presumed error violates the constitutional right against
self-incrimination. The trial court overruled appellant's
objection to the statement, thereby conveying to the jury
that it could consider the prosecutor's statement. This
factor weighs in favor of finding the presumed error to be
harmful. See Whitehead v. State, 437 S.W.3d 547, 553
(Tex. App.-Texarkana 2014, pet. ref'd). Next, we examine
the extent, if any, to which the State emphasized the error.
The State did not refer to appellant's demeanor after the
disputed comment, although the prosecutor did state again,
after arguing that the evidence showed appellant had
committed capital murder, that appellant had no remorse for
his action. The primary emphasis of the prosecutor's
closing argument was appellant's lengthy history of
violent acts, before and after his incarceration, and
appellant's violence at times when he was not using
Xanax. See Grant v. State, 218 S.W.3d 225, 234 (Tex.
App.-Houston [14th Dist.] 2007, pet. ref'd). The
prosecutor's commentary about appellant's lack of
remorse was brief and was not stressed during the closing
argument. See Crayton, 463 S.W.3d at 536.
Probable implications ...