James Mark Jokel v. the State of Texas ( 2022 )

Opinion filed February 17, 2022
In The
Eleventh Court of Appeals
__________
No. 11-20-00087-CR
__________
JAMES MARK JOKEL, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 266th District Court
Erath County, Texas
Trial Court Cause No. CR15254
OPI NI ON
Appellant, James Mark Jokel, was arrested after he repeatedly struck the back
door of his parents’ home in Erath County with an axe. The State subsequently
indicted Appellant for the offense of burglary. The indictment alleged that Appellant
“intentionally and knowingly enter[ed] a habitation . . . and attempted to commit or
committed an aggravated assault against Bobby Jokel”—Appellant’s father. See
TEX. PENAL CODE ANN. § 30.02(a)(3) (West 2019). The indictment further alleged
that Appellant exhibited a deadly weapon, an axe, during the commission of the
offense. After the jury found Appellant guilty as charged in the indictment, and upon
Appellant’s election, the trial court assessed Appellant’s punishment at
imprisonment for thirty-five years and a $2,000 fine. See id. § 30.02(d)(1)–(2). In
his sole issue on appeal, Appellant contends that the trial court erred when it refused
to instruct the jury on the lesser included offense of aggravated assault. We reverse
and remand.
I. Factual Background
Appellant has not challenged the sufficiency of the evidence; therefore, we
have tailored our discussion to the facts that are necessary to the disposition of this
appeal.
Appellant’s parents, Sandra and Bobby Jokel, are married and reside together
in Stephenville. At the time of his arrest, Appellant resided primarily in his parents’
travel trailer that was located behind the Jokel residence. The evidence presented at
trial was undisputed that Appellant and Bobby had a contentious and “challenging”
relationship.
The back of the Jokel residence had glass French doors that led into the
backyard, where the Jokels’ travel trailer and the barn that they used as a shop were
situated. On the morning of Appellant’s arrest, Appellant was in the backyard by
the barn working on Bobby’s pickup. At some point, Bobby went to let his dog out
of the house and into the backyard. When he opened the back door, Bobby noticed
that the hood of his pickup was raised and saw that Appellant was “doing something”
with the pickup. Bobby shouted at Appellant to “leave [his] pickup alone.”
According to Bobby, Appellant yelled, “I’ll kill you, you SOB, I’ll kill you,”
and immediately “[ran] at the door with an axe in his hand.” Bobby reacted by
closing the back door, locking it, and dialing 9-1-1 as Appellant swung at the glass
doors with the axe. According to Appellant, he heard Bobby shout at him to “get
away from [the] truck” and then Appellant “heard the door slam.” Appellant
2
testified that Bobby would “always” angrily slam the door shut and then lock it. This
angered Appellant. He testified that although he had a key to the back door, his
objective that morning was to “tear that . . . door down” in order to teach Bobby a
lesson about slamming it. To that end, Appellant went into the shop and retrieved
an axe because it “was the first thing that was handy.”
While Appellant was striking the back door with the axe, Bobby retrieved his
handgun and pepper spray and waited for law enforcement to arrive. Bobby testified
that Appellant did not “[enter] the house and swing the axe at [him].” Rather, when
Appellant ceased striking the back door with the axe, he walked away from the house
and into the field that was behind the barn. Appellant was standing in knee-high
grass, shouting, and swearing when State Troopers eventually located him in the
field. Appellant was still holding the axe. After some discussion with the troopers
who approached him, Appellant eventually surrendered to Constable Jason Schipper
when he arrived at the scene.
Sandra was in Fort Worth at the time of the incident. Sandra testified that
Bobby “doesn’t like [and has] never liked [Appellant], [and] he hates [Appellant’s]
guts.” Sandra also testified that she is the title-owner to the house and that it is her
separate property. She explained that she and Bobby were divorced in 1991 and that
she was awarded the house in the property division. Bobby and Sandra eventually
remarried, and he has lived at the Jokel residence since that time.
Bobby testified that he and Sandra did not “see eye-to-eye” concerning
Appellant’s blanket access to the house. According to Sandra, Appellant is a resident
of the household: she explained that, although Appellant slept in the travel trailer,
Appellant lived at and had unfettered access to the Jokel residence. Appellant had a
key to the back door of the house that Bobby had provided to him. Sandra testified
that Appellant “came in [the house] to eat, . . . to bathe, and [to] wash his clothes.”
Further, Appellant “just came in whenever he got ready to” do those things because
3
he “live[s] there.” According to Bobby, he had previously asked Appellant to move
out of the Jokel residence due to financial reasons; however, and despite Bobby’s
insistence, Sandra testified that Bobby did not have the authority to oust Appellant
from the house. Moreover, Appellant testified that he has “always lived there” and
stated: “that’s my address, you know, on my driver’s license.”
At the conclusion of the guilt/innocence phase of Appellant’s trial, and before
the charge was read to the jury, Appellant’s trial counsel requested and submitted a
proposed jury instruction on the lesser included offense of aggravated assault. The
trial court refused to submit the requested instruction, and the jury found Appellant
guilty of the indicted offense. In his sole issue on appeal, Appellant challenges the
trial court’s refusal to charge the jury on the lesser included offense of aggravated
assault.1
II. Standard of Review
Whether an instruction on a requested lesser included offense is warranted
requires a two-step analysis. Safian v. State, 543 S.W.3d 216, 219 (Tex. Crim. App.
2018); Rice v. State, 333 S.W.3d 140, 144 (Tex. Crim. App. 2011) (citing Hall v.
State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007)); Mathis v. State, 67 S.W.3d
918, 925 (Tex. Crim. App. 2002); Rousseau v. State, 855 S.W.2d 666, 672 (Tex.
Crim. App. 1993). First, we must determine, as a matter of law, whether the offense
to be submitted is a lesser included offense of the charged offense. Safian, 543
S.W.3d at 219–20; Rice, 333 S.W.3d at 144; Ybarra v. State, 621 S.W.3d 371, 379
(Tex. App.—Eastland 2021, pet. ref’d). Second, before an instruction on a lesser
included offense is required, we must determine whether there is some evidence in
the record that would permit a jury to rationally find that, if the defendant is guilty,
1
We are aware of Williams v. State, No. PD-0477-19, 2021 WL 2132167 (Tex. Crim. App. May 26,
2021), which is currently pending on rehearing before the Court of Criminal Appeals. Because the Williams
opinion is subject to change, its application to this case is currently unclear. For the purposes of our opinion,
we will assume, regardless of Williams, that Appellant preserved his issue for our review.
4
he is guilty only of the lesser included offense. Safian, 543 S.W.3d at 219; Rice, 333
S.W.3d at 145; Mathis, 67 S.W.3d at 925; Ybarra, 621 S.W.3d at 379.
III. Analysis
The first step of our analysis is accomplished by comparing the statutory
elements of the lesser offense and the “statutory elements and any descriptive
averments in the indictment.” Ritcherson v. State, 568 S.W.3d 667, 670–71 (Tex.
Crim. App. 2018) (citing Bullock v. State, 509 S.W.3d 921, 924 (Tex. Crim. App.
2016)). An offense is a lesser included offense if “it is established by proof of the
same or less than all the facts required to establish the commission of the offense
charged.” TEX. CODE CRIM. PROC. ANN. art. 37.09(1) (West 2006); Wortham v. State,
412 S.W.3d 552, 554–55 (Tex. Crim. App. 2013). Because the first step concerns a
question of law, “[w]e do not consider the evidence that was presented at trial.
Instead, we consider only the statutory elements of [the offense] as they were
modified by the particular allegations of the indictment . . . . We then compare them
with the elements of the [requested] lesser offense . . . .” Wortham, 412 S.W.3d at
555 (all but first alteration in original) (quoting Hall, 225 S.W.3d at 536).
Here, the State concedes that aggravated assault is a lesser included offense
of burglary of a habitation as it is charged in the indictment. See CRIM. PROC. art.
37.09. Therefore, we now turn to the second step of our analysis to determine
whether there is some evidence that would permit a jury to rationally find that
Appellant is guilty only of the lesser included offense of aggravated assault.
The second requirement is satisfied if there is “(1) evidence that directly
refutes or negates other evidence establishing the greater offense and raises the lesser
included offense or (2) evidence that is susceptible to different interpretations, one
of which refutes or negates an element of the greater offense and raises the lesser
offense.” Ritcherson, 568 S.W.3d at 671 (citing Saunders v. State, 840 S.W.2d 390,
391–92 (Tex. Crim. App. 1992)). In this regard, we consider all of the evidence
5
admitted at trial; if more than a scintilla of evidence exists in the record to raise the
lesser offense and either negate or rebut an element of the greater offense, then the
defendant is entitled to a lesser-included-offense jury instruction. Id. (citing Roy v.
State, 509 S.W.3d 315, 317 (Tex. Crim. App. 2017)); see Bignall v. State, 887 S.W.2d
21, 23 (Tex. Crim. App. 1994). Nevertheless, such evidence cannot be speculative;
it must consist of affirmative evidence that raises both the lesser included offense
and rebuts or negates an element of the greater offense. Wortham, 412 S.W.3d at
558. Furthermore, the evidence must be such that it establishes the lesser included
offense as a “valid rational alternative to the charged offense.” Segundo v. State, 270
S.W.3d 79, 91 (Tex. Crim. App. 2008).
In this case, the State charged Appellant with the offense of burglary pursuant
to Section 30.02(a)(3). See PENAL § 30.02(a)(3). Under that provision, a person
commits the offense of burglary if: (1) without the effective consent of the owner,
(2) the person enters a habitation, and (3) commits or attempts to commit a felony
or an assault. See id. A person commits the offense of assault—the third element
of burglary as charged in this case—if he either (a) intentionally, knowingly, or
recklessly causes bodily injury to another or (b) intentionally or knowingly threatens
another with imminent bodily injury. See id. § 22.01(a)(1)–(2) (West Supp. 2021).
An assault becomes an aggravated felony if the person “uses or exhibits a deadly
weapon during the commission of the assault.” Id. § 22.02(a)(2). Here, Appellant
argues that some evidence tended to show that he had the owner’s—Sandra’s—
effective consent to enter the house at any time; therefore, Appellant asserts that he
could not be guilty of the indicted offense of burglary but, rather, if he was guilty,
he was only guilty of the lesser included offense of aggravated assault. We agree.
The Penal Code defines “[o]wner” as “a person who . . . has title to the
property, possession of the property, whether lawful or not, or a greater right to
possession of the property than the actor.” Id. § 1.07(a)(35)(A) (West 2021). The
6
“effective consent” element of burglary encompasses “consent by a person legally
authorized to act for the owner.” Id. § 1.07(a)(19). Sandra, the title-owner of the
habitation, testified that, although Appellant primarily stayed in the travel trailer
behind the house, Appellant had unfettered permission to enter the house
“whenever” he desired. According to Sandra, Appellant lived in her house and thus
maintained the same status as a resident: Appellant possessed a key to the house and
could enter and leave at his convenience, without knocking. Appellant testified
similarly. Sandra explained that Bobby “never liked [Appellant]” and that she knew
Bobby wanted Appellant to “move out.” Further, Sandra testified that Bobby did
not have the ultimate authority to demand or to advise Appellant that he must leave
the Jokel residence. Therefore, the evidence is such that a rational jury could have
found that (1) Appellant had the effective consent to enter the house from its owner,
Sandra, or (2) Bobby did not have a greater right to possession of the house than
Appellant but, rather, only had, at most, an equal right to possession.
Because more than a scintilla of evidence exists in the record to rebut or negate
the effective-consent element of the greater offense of burglary as charged in the
indictment, we hold that Appellant was entitled to the requested jury instruction on
the lesser included offense of aggravated assault. See Ritcherson, 568 S.W.3d at
671. Therefore, the trial court erred when it refused to submit this requested
instruction to the jury. In light of our holding, we must now determine whether the
trial court’s error requires reversal.
If jury-charge error has been preserved by proper objection, we will reverse if
the error in the trial court’s charge resulted in some harm to the accused. Ngo v.
State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Hardeman v. State, 556 S.W.3d
916, 923 (Tex. App.—Eastland 2018, pet. ref’d); see Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985). “[T]he harm from denying a lesser offense
instruction stems from the potential to place the jury in the dilemma of convicting
7
for a greater offense in which the jury has reasonable doubt or releasing entirely from
criminal liability a person the jury is convinced is a wrongdoer.” Masterson v. State,
155 S.W.3d 167, 171 (Tex. Crim. App. 2005); Hardeman, 556 S.W.3d at 923. When,
as in this case, the trial court’s refusal to submit a lesser included offense that was
requested by the defendant and raised by the evidence “[leaves] the jury with the
sole option either to convict the defendant of the greater offense or to acquit him,”
some harm exists. Saunders v. State, 913 S.W.2d 564, 571 (Tex. Crim. App. 1995)
(emphasis added). Such is this case here. Therefore, because the only option
available to the jury in this case was either to convict or acquit Appellant of the
indicted offense of burglary, we hold that Appellant suffered some harm.
Accordingly, we sustain Appellant’s sole issue on appeal.
IV. This Court’s Ruling
We reverse the judgment of the trial court and remand this cause to the trial
court for a new trial.
W. STACY TROTTER
JUSTICE
February 17, 2022
Publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Bailey, C.J.,
Trotter, J., and Williams, J.
8