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Nard v. State

Court of Appeals of Texas, Sixth District, Texarkana

May 19, 2017

THOMAS EARL NARD, Appellant
v.
THE STATE OF TEXAS, Appellee

          Submitted: March 2, 2017

         On Appeal from the 5th District Court Cass County, Texas Trial Court No. 2015-F-00296

          Before Morriss, C.J., Moseley and Burgess, JJ.

          OPINION

          Ralph K. Burgess Justice

         Thomas Earl Nard was convicted of the offenses of aggravated assault with a deadly weapon and deadly conduct.[1] He elected to have the trial court assess punishment, and after a punishment hearing, the trial court sentenced Nard to serve seventy years' imprisonment on the present charge. On appeal of his aggravated assault with a deadly weapon conviction, Nard asserts (1) that the trial court erred in failing to instruct the jury on the lesser-included offense of assault, (2) that the district clerk's failure to file the master jury venire list or the lists of each parties' peremptory strikes precludes review of whether those strikes were utilized in an illegal manner, and (3) that the State failed to prove at punishment that he was the person convicted of the two prior felony offenses alleged by the State in the enhancement paragraphs of the indictment. We overrule Nard's points of error and affirm the judgment of conviction.

         I. Lesser-Included Offense Instruction on Assault

         Nard complains that the trial court should have granted his request for a jury charge instruction on the lesser-included offense of assault. Nevertheless, upon review of the charge, we find that the jury was, in fact, given such an instruction.

         The court's charge instructed the jury on the elements of aggravated assault with a deadly weapon and stated that in order to find Nard guilty of that offense, the jurors must unanimously agree that the State proved each of those elements beyond a reasonable doubt. The charge then stated,

However, if you find from the evidence beyond a reasonable doubt that the defendant, in Cass County, Texas, on or about July 16, 2014, did intentionally or knowingly threaten Frederick Mack with imminent bodily injury but that you entertain a reasonable doubt as to whether the defendant used or exhibited a shotgun, a deadly weapon then you will find the Defendant guilty of Assault and not of Aggravated Assault with a Deadly Weapon.

         The verdict form provided three options: (1) a finding that Nard was guilty of aggravated assault with a deadly weapon, (2) a finding that Nard was guilty of assault, or (3) a finding that Nard was not guilty of either offense. The court's charge accurately stated the law and gave the jury the option of finding Nard guilty of the lesser-included offense of assault. Accordingly, we overrule Nard's first point of error.

         II. The Supplemental Record Contains the Jury Venire and Strike Lists

         Nard next complains that the clerk's record, as originally filed in this matter, did not contain the master venire lists or the lists of each party's peremptory strikes. He contends that the absence of those documents precludes appellate review of whether the strikes were utilized legally. At our request, the district clerk supplemented the clerk's record with the venire list and the parties' strike lists.[2] Nard has presented no supplemental argument or allegation of error after the supplementation was completed. Consequently, we overrule Nard's second point of error.

         III. The State Sufficiently Proved the Enhancement Allegations

         Nard argues in his third point of error that the State failed to prove at punishment that he was the person convicted of the two prior felony offenses alleged in the indictment's enhancement paragraphs. The indictment alleged the following prior convictions:

[O]n the 27th day of May, 1986, in cause number 17, 611 in the Fifth Judicial District Court of Cass County, Texas the defendant was finally convicted of the felony ...

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