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Alcoser v. State

Court of Appeals of Texas, Seventh District, Amarillo

December 20, 2019

DANNY WAYNE ALCOSER, APPELLANT
v.
THE STATE OF TEXAS, APPELLEE

          On Appeal from the 19th District Court McLennan County, Texas Trial Court No. 2016-1261-C1 (Counts I, II & III); Honorable Ralph T. Strother, Presiding

          Before QUINN, C.J., and PIRTLE and PARKER, JJ.

          OPINION

          PATRICK A. PIRTLE JUSTICE

         Appellant, Danny Wayne Alcoser, appeals three convictions related to a domestic violence incident.[1] Following pleas of not guilty to all three counts of the indictment and a plea of true to an enhancement allegation, a jury convicted him on all counts and assessed punishment as follows:

Count I

Assault Family

Violence, a third degree felony enhanced to a second degree felony

TEX. PENAL CODE ANN. §§ 22.01(b)(2), 12.42(a) (WEST 2019)

Twenty years and a fine of $10, 000

Count II

Endangering a Child, a state jail felony

TEX. PENAL CODE ANN. § 22.041(c), (f) (West 2019)

Two years and a fine of $10, 000

Count III

Interference with Emergency Request for Assistance, a Class A misdemeanor

TEX. PENAL CODE ANN. § 42.062(a) (West 2017)

One year in county jail and a fine of $4, 000

         Appellant's sentences were ordered to run concurrently. By four issues, he challenges all three of his convictions. By his first issue, he contends the trial court abused its discretion in denying a mistrial. By issues two and three, he argues he was egregiously harmed when the trial court failed to properly instruct the jury regarding the applicable culpable mental states and when it failed to properly instruct the jury on the law relating to self-defense by not including an application paragraph and by omitting the definition of "reasonable belief." By his fourth and final issue, he maintains the evidence is factually insufficient to support his conviction. For the reasons that follow, we reverse and remand each conviction.

         Background

         Appellant and the complainant met when she was assigned as his daughter's Child Protective Services caseworker. When that case was closed, the complainant and Appellant began an on-again, off-again romantic relationship.

         The complainant has two children, T.W. and J.A., the younger being Appellant's biological child. T.W., a special needs child, was six years old at the time of the incident resulting in Appellant's convictions and J.A., Appellant's child, was less than a year old. In May 2016, the complainant and Appellant were having relationship issues and were attending court-ordered counseling. The court order required them to live separately. During that period of separation, Appellant was staying with a former girlfriend.

         On the day in question, the complainant was taking a shower and her two children were in the home. Appellant claimed he believed no one was home and used his key to enter and gather his clothes from the master bedroom closet. The complainant heard someone and exited the shower. When she realized Appellant was removing his clothes from the closet, she tried to persuade him to stay and they engaged in a physical altercation. According to Appellant's version of the events, he thought no one was home and was suddenly struck on the back of the head causing him to instinctively grab the person assaulting him without realizing it was the complainant.

         Claiming he was defending himself from the complainant, Appellant placed one of his hands over her esophagus, causing her breathing to be impeded. With a firm hold around her neck, he guided her backwards from the closet through the master bedroom and toward the master bathroom.

         The complainant testified that she fought back and was able to free herself from Appellant's grasp. She ran to the living room as Appellant gathered his belongings and left. She then locked the door behind him. When Appellant realized he had left his cigarettes inside, he asked to re-enter the home. The complainant instructed him to remain outside while she brought him his cigarettes. Instead, he entered the living room and the fighting resumed.

         T.W. tried to separate them and was pushed away by Appellant. At that time, the complainant held up her cell phone and threatened to call the police. Appellant responded with a threat and grabbed her phone and damaged it. The complainant then instructed T.W. to run out of the house and he complied. She grabbed her infant and tried to leave through the back door; however, according to the complainant, Appellant followed her with a baseball bat. She testified that he threatened to kill her. She turned and ran toward the front door but veered off toward the master bathroom to try to exit through a window. She was unable to completely close the bathroom door when Appellant pushed it open, causing her to fall into the bathtub while still holding her infant. The complainant hit her head but managed to shield the infant from any injury. Appellant left the premises and the complainant went to a neighbor's house where she asked them to call 911 because her cell phone was inoperable.

         Sergeant John Tucker responded to an assault-in-progress call at the complainant's home. He testified he was familiar with the address due to prior encounters with the parties. When he arrived, the complainant gave the officer her version of the incident. Sergeant Tucker decided not to interview T.W. in order to avoid any further trauma to the child. At trial, Sergeant Tucker testified that the complainant was visibly upset, and photographs taken at the scene showed red marks around her neck.

         Appellant was arrested a few weeks later. While he was in jail, the complainant visited him, and they also corresponded. Eventually, the complainant signed an affidavit of non-prosecution seeking dismissal of the charges against Appellant. She testified she still loved Appellant and did not want him prosecuted. Nevertheless, the case proceeded to trial.

         After the State presented its case-in-chief, Appellant chose not to testify. However, after both sides had rested and closed, he changed his mind. The trial court re-opened the evidence and admonished Appellant of the consequences of testifying. Against counsel's advice, Appellant testified he was defending himself against the complainant who initially assaulted him by surprise while he was gathering his clothes. According to Appellant, "[n]obody was supposed to be there." "I started getting hit in the back of the head." He explained that his physical reaction toward the complainant was "a response to - - to being hit." He also testified that the complainant damaged her own cell phone and fabricated her version of the events to avoid losing custody of her children because she was under investigation by Child Protective Services. He also sought admission into evidence of recorded phone calls which he claimed would reveal the truth.[2]

         During his testimony, Appellant admitted having a drug and alcohol problem in the past. He also testified that he suffers from anxiety and cannot always afford his medication. He admitted relinquishing his parental rights to other children so that the complainant would not lose custody of her two children.

         Essentially, Appellant's self-defense theory portrayed the complainant as the provocateur. He insisted that she fabricated the story about falling in the bathtub. He denied using a baseball bat to intimidate her during the altercation and testified he never threatened to kill her. In his opinion, the complainant's machinations benefitted her with Child Protective Services because, if it was believed she was the instigator, she risked losing custody of her children.

         After testimony in the guilt or innocence phase of trial concluded, the court held a charge conference. The charge included three counts-one for each offense-and a paragraph on self-defense. It also included definitions of various culpable mental states and other standard instructions. When the trial court asked for objections to the charge, counsel for Appellant stated, "[n]o objections or requests." After closing arguments, the jury deliberated and then returned guilty verdicts on all three counts.

         We will address Appellant's issues in a logical rather than sequential order. First, we begin with issues two and three by which he raises various errors relating to the jury charge. Specifically, by issue two, he maintains the trial court erred in failing to properly define the culpable mental states applicable to each separate offense and by failing to properly tailor them to the offenses with which he was charged. By his third issue, Appellant contends the trial court erred in omitting an application paragraph as well as the definition of "reasonable belief" in the instruction on self-defense. Appellant maintains the cumulative effect of the numerous errors caused him egregious harm. We agree.

         Applicable Law-Charge Error

         Article 36.14 of the Texas Code of Criminal Procedure mandates that the trial court "shall deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case . . . ." Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). (Emphasis added). "The purpose of the jury charge is to inform the jury of the applicable law and guide them in its application to the case." Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex. Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)). Therefore, a proper charge consists of an abstract statement of the law applicable to the case and such application paragraph or paragraphs as are necessary to apply that law to the facts. Ramirez v. State, 336 S.W.3d 846, 851 (Tex. App.-Amarillo 2011, pet. ref'd). The abstract paragraph of a jury charge serves as a guide or glossary to help the jury understand the meaning of concepts and terms used in the application paragraph of the charge. Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017). The failure to give an abstract instruction is reversible error when such an instruction is necessary to correct or complete the jury's understanding of concepts or terms in the application part of the charge. Malik v. State, 953 S.W.2d 234, 235 (Tex. Crim. App. 1997).

         In its charge to the jury, "[a] trial judge must maintain neutrality in providing such information and guidance." Beltran De La Torre, 583 S.W.2d at 617 (citing Brown v. State, 122 S.W.2d 794, 798 (Tex. Crim. App. 2003)). The jury charge should avoid any special allusion to a particular fact in evidence, "as the jury might construe this as judicial endorsement or imprimatur." Id. Furthermore, an instruction is improper if it "impermissibly guide[s]" a jury's consideration of the evidence or "improperly focuses the jury" on certain evidence because such an instruction would amount to an impermissible comment on the weight of the evidence. Brown, 122 S.W.2d at 802. To accomplish these purposes, article 36.14 provides that a jury charge: (1) must be in writing; (2) must "distinctly set[] forth the law applicable to the case"; (3) cannot "express[] any opinion as to the weight of the evidence"; (4) may "not sum[] up the testimony"; and (5) cannot "discuss[] the facts or us[e] any argument in [the] charge calculated to arouse the sympathy or excite the passions of the jury." Tex. Code Crim. Proc. Ann. art. 36.14.

         Appellate review of claimed jury-charge error involves a two-step process. See Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). See also Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). A reviewing court must initially determine whether charge error occurred. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). If an appellate court finds charge error, the next step requires the reviewing court to analyze that error for harm. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012).

         Charge error requires reversal when a proper objection has been made and a reviewing court finds "some harm," i.e., error that is calculated to injure the rights of the defendant. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Where, as here, the alleged error was not preserved by objection, Appellant can prevail only if he was egregiously harmed by an erroneous charge. Arteaga, 521 S.W.3d at 338. Jury charge error is egregious if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Id. Egregious harm is a "high and difficult standard which must be borne out by the trial record." Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

         When reviewing harm resulting from charge error, an appellate court must determine harm in light of (1) the jury instructions, (2) the state of the evidence, (3) the arguments of counsel, and (4) any other relevant information revealed by the record of the trial as a whole. See Anaya v. State, 381 S.W.3d 660, 665 (Tex. App.-Amarillo 2012, pet. ref'd) (citing Almanza, 686 S.W.2d at 174). Also, there is no burden of proof or persuasion in a harm analysis conducted under Almanza. See Anaya, 381 S.W.3d at 665.

         Charge Error Analysis

         Assault-Family ...


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