Rockcale Harris v. State ( 2017 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-15-00424-CR
ROCKCALE HARRIS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 297TH DISTRICT COURT OF TARRANT COUNTY
TRIAL COURT NO. 1394441D
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MEMORANDUM OPINION1
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In three issues, Appellant Rockcale Harris appeals his conviction for
aggravated assault with a deadly weapon. See Tex. Penal Code Ann.
§ 22.02(a)(2) (West 2011). We affirm.
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See Tex. R. App. P. 47.4.
Background
In the evening of Saturday, October 18, 2014, Eric Edwards hosted a party
at his house to celebrate his birthday. The guests included various family
members and friends, including Eric’s brother Derrick, and Eric’s friend and
former roommate, Harris. Many of the guests were consuming alcohol and
marijuana.
At some point in the evening, Eric overheard that Harris was planning to
call someone else to bring more marijuana to the party. This offended Eric, who
felt that Harris was being disrespectful by not consulting with him first before
inviting someone else to bring marijuana to his home. When Eric confronted
Harris about this, the two started “having words,” and then the situation escalated
when Harris called Eric’s mother a “b****.”
According to Eric, Derrick became upset at Harris’s remark about their
mother, and then Derrick, too, began to confront Harris. Eric then told Harris to
leave, and he did. Four or five other party guests, including Harris’s cousin
Brandon, also left with Harris to return to Harris’s house, which was located
approximately five-minutes’ walking distance away. According to Eric, during the
verbal exchange, no one talked about having any weapons.
Later that evening, Brandon and another group of people returned to Eric’s
house. After Eric told them to leave, an argument broke out and Derrick’s son hit
Brandon. Brandon took off running down the street and returned shortly
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thereafter with Harris and three other people. Harris was holding his hand
behind his back as he approached Eric’s house.
According to Eric, when he, Derrick, and a few other party guests met
Harris’s group in the street, he heard Derrick say to Harris, “Oh, n****, you gon’
bring a gun to a fight.” Eric also said he heard Harris reply, “N****, the gun
already cocked.” Derrick provided nearly identical testimony.
Eric testified that as the two groups approached each other, he was
focused on one member of Harris’s group, Kendrick Adams, because Kendrick
was the largest one. But just as he was preparing to fight with Kendrick, Eric
heard Derrick say, “Awe, man, this—I—this n**** just shot me.” At that point,
although he had heard no gunshots, Eric realized that Derrick had been hit.
The bullet entered Derrick’s mouth, knocked out his teeth, and put a hole
under his tongue. But he survived. And, after two surgeries and rehabilitative
therapy, Derrick recovered.
Harris was arrested and charged with aggravated assault with a deadly
weapon, but at trial Brandon testified that he, not Harris, shot Derrick. Brandon
claimed that after he had “gotten into it” with Eric, he went to his friend’s house,
retrieved a gun, and returned with it to Eric’s house. According to Brandon, he
was not aiming at Derrick, but “just shot,” and he accidentally hit him. Brandon
further testified that Harris was not even present when Derrick was shot. Despite
Brandon’s testimony, Harris was convicted of aggravated assault with a deadly
weapon and sentenced to 37 years’ confinement.
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Discussion
I. Lesser-included offense instruction
In his first issue, Harris argues that the trial court erred in denying his
request to submit a jury instruction of simple assault as a lesser-included offense
of aggravated assault with a deadly weapon. See Tex. Penal Code Ann.
§§ 22.01(a)(1), 22.02(a)(2) (West 2011).
In our review of a jury charge, we first determine whether error occurred; if
error did not occur, our analysis ends. Kirsch v. State, 357 S.W.3d 645, 649
(Tex. Crim. App. 2012).
An offense is a lesser-included offense of another offense if the indictment
for the greater offense either (1) alleges all of the elements of the lesser-included
offense or (2) alleges elements plus facts (including descriptive averments, such
as nonstatutory manner and means, that are alleged for purposes of providing
notice) from which all of the elements of the lesser-included offense may be
deduced. Tex. Code Crim. Proc. Ann. art. 37.09(1) (West 2006); Ex parte
Watson, 306 S.W.3d 259, 273 (Tex. Crim. App. 2009) (op. on reh’g). In
determining whether a lesser-included offense has been established, we use a
two-step analysis, looking first at the facts and elements as alleged in the
charging instrument, as well as at the statutory elements of the offense. Hall v.
State, 225 S.W.3d 524, 535–36 (Tex. Crim. App. 2007). This is a question of law
and does not depend on the evidence introduced at the trial. Id. at 535. In the
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second step of our analysis, we consider whether the evidence presented at trial
supported giving the instruction to the jury. Id. at 536.
Contrary to Harris’s suggestion in his brief, Texas courts have rejected a
per se rule that proof of the offense of assault causing bodily injury is included
within the proof necessary to establish the offense of aggravated assault with a
deadly weapon. Irving v. State, 176 S.W.3d 842, 845 (Tex. Crim. App. 2005). In
Irving, the court of criminal appeals held that assault causing bodily injury was
not a lesser-included offense of assault with a deadly weapon where the conduct
constituting the lesser-included offense—grabbing the complainant and falling on
top of her—was different from the conduct which was alleged in the charging
instrument for the appellant’s aggravated-assault charge—striking the
complainant with a baseball bat. Id. at 845–46.
Similarly, in this case Harris sought an instruction of simple assault
causing bodily injury based on testimony that Harris may have punched Derrick.
But, as in Irving, the simple assault conduct required different proof than the
aggravated assault alleged in the charging instrument. Here, the indictment
alleged that Harris shot Derrick with a firearm. Because punching Harris in the
face is not the same conduct as shooting Harris in the face, simple assault is not
a lesser-included offense. See id. at 846. We therefore overrule Harris’s first
issue.
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II. Prior conviction
In his second issue, Harris argues that the evidence was insufficient to
prove his prior conviction for the purpose of enhancement. Specifically, Harris
takes issue with certain exhibits admitted as evidence of four prior convictions
because the State’s fingerprint expert could not verify the fingerprints on those
exhibits.
To establish that a defendant has been convicted of a prior offense, the
State must prove beyond a reasonable doubt that (1) a prior conviction exists,
and (2) the defendant is linked to that conviction. Flowers v. State, 220 S.W.3d
919, 921 (Tex. Crim. App. 2007). No specific document or mode of proof is
required to prove these two elements. Id. Any type of evidence, documentary or
testimonial, might suffice to prove this connection. Id. at 922. As the court of
criminal appeals has explained, the proof that is adduced to establish this
connection resembles a jigsaw puzzle—the trier of fact fits the pieces together,
weighs the credibility of each piece, and determines if the pieces fit together
sufficiently to complete the puzzle. Id. at 923 (citing Human v. State, 749 S.W.2d
832, 835–36 (Tex. Crim. App. 1988) (op. on reh’g)).
The trial court admitted six exhibits—Exhibits 31, 32, 33, 34, 35 and 36—
purporting to evidence prior convictions of Harris. The State relied upon two of
these exhibits—Exhibits 31 and 33—to seek habitual offender punishment
enhancement based upon prior convictions. See Act of June 14, 2013, 83rd
Leg., R.S., ch. 663, 2013 Gen. Laws 1756, 1756 (amended 2015) (current
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version at Tex. Penal Code Ann. § 12.42(d) (West Supp. 2016)) (providing that
punishment may be enhanced if it is shown in the trial of a felony offense 2 that
the defendant has previously been convicted of two felony offenses). Exhibit 31
evidenced a 2008 conviction for the felony offense of assault on a public servant.
See Tex. Penal Code Ann. § 22.01(a)(1), (b)(1) (West Supp. 2016). Exhibit 33
evidenced a 2012 conviction for the felony offense of injury to a child causing
bodily injury. See id. § 22.04(a)(3), (f) (West Supp. 2016).
Both Exhibits 31 and 33 identify Harris by his name, date of birth, sex,
race, county ID number (CID), and state ID number. Exhibit 31 also identifies
Harris by his fingerprints. At trial, Deputy Paul Rojas with the Tarrant County
Sheriff’s Department identified those fingerprints as belonging to Harris, a fact
that Harris does not dispute.
Exhibit 35, an exhibit that Harris does not complain about on appeal, also
identifies Harris by his name, date of birth, sex, race, CID number, and state ID
number, as well as by his fingerprints. Additionally, the same name, date of birth,
race, sex, and CID identified in Exhibits 31, 33, and 35, are reflected in the
indictment in this case and the fingerprint card admitted in this case as Exhibit
30.
Contrary to Harris’s argument that there was no testimony as to the
significance of the CID referenced in this case, Deputy Rojas testified that each
2
Aggravated assault is a felony offense. Tex. Penal Code Ann. § 22.02(b)
(West 2011).
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person who is booked into the Tarrant County Jail is assigned a unique CID. He
also identified Harris’s CID as it appeared on the fingerprint card and all six of the
convictions admitted into evidence by the trial court in Exhibits 31, 32, 33, 34, 35,
and 36.
Considering all of these exhibits together, this evidence was sufficient to
link Harris to the two convictions reflected in Exhibits 31 and 33 that were used to
enhance his sentence. See Ramirez v. State, No. 02-13-00540-CR, 2015 WL
4652771, at *8 (Tex. App.—Fort Worth Aug. 6, 2015, pet. ref’d) (mem. op., not
designated for publication) (holding appellant’s identity in prior convictions was
shown through evidence of common CID in other documents with matching
fingerprints); Jones v. State, No. 02-11-00060-CR, 2012 WL 3735890, at *2 (Tex.
App.—Fort Worth Aug. 30, 2012, pet. ref’d) (mem. op., not designated for
publication) (holding evidence was sufficient to establish appellant’s identity in
prior conviction where exhibits shared identical CID number and date of birth);
Norris v. State, No. 02-10-00468-CR, 2012 WL 2135594, at *3 (Tex. App.—Fort
Worth June 14, 2012, pet. ref’d) (mem. op., not designated for publication)
(holding evidence of identical CID number, date of birth, and full name was
sufficient to link appellant to prior convictions). We therefore overrule Harris’s
second issue.
III. Motion for continuance
In his third issue, Harris argues that the trial court abused its discretion in
denying his request for a continuance based on the State’s failure to turn over
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medical records in a timely manner.3 The police department obtained more than
300 pages of Derrick’s medical records during its investigation of the shooting,
but Harris’s counsel did not receive those medical records until November 2,
2015, the first day of trial. On the second day of trial, Harris filed a motion for
continuance, arguing that his counsel needed additional time to review the
medical records to determine whether he needed to hire an expert witness.
We review a trial court’s denial of a motion for continuance based upon
surprise for an abuse of discretion. Jones v. State, 501 S.W.2d 677, 678 (Tex.
Crim. App. 1973).
Parties may be granted a continuance after trial has begun under article
29.13 of the code of criminal procedure “when it is made to appear to the
satisfaction of the court that by some unexpected occurrence since the trial
began, which no reasonable diligence could have anticipated, the applicant is so
taken by surprise that a fair trial cannot be had.” Tex. Code Crim. Proc. Ann. art.
29.13 (West 2006). First, Harris made no showing, in his motion or otherwise,
that the existence of the medical records could not have been anticipated by
reasonable diligence. See id.; Jones, 501 S.W.2d at 678–79 (holding counsel
made no showing of reasonable diligence to justify his failure to anticipate
3
To the extent that Harris argues that the State’s failure to disclose the
medical records violated his rights under the due process clause, we decline to
address such argument because it was not presented at trial and it was therefore
not preserved. Tex. R. App. P. 33.1(a)(1); Douds v. State, 472 S.W.3d 670, 674
(Tex. Crim. App. 2015), cert. denied, 136 S. Ct. 1461 (2016).
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witness’s identification of appellant as robber). Given the nature and extent of
the injuries alleged in this case, it can hardly be said that Harris would not
reasonably anticipate that such medical records would exist. See Williams v.
State, 696 S.W.2d 896, 898 (Tex. Crim. App. 1985) (noting admission of
complainant’s medical records in prosecution for aggravated assault); Sizemore
v. State, 387 S.W.3d 824, 829–30 (Tex. App.—Amarillo 2012, pet. ref’d) (same);
see also Fears v. State, 479 S.W.3d 315, 325 (Tex. App.—Corpus Christi 2015,
pet. ref’d) (holding appellant did not show reasonable diligence in requesting
continuance to review CPS records in child sexual abuse case).
Second, while Harris asserted that he needed a continuance to review the
medical records and possibly hire an expert, he made no attempt to show how a
fair trial could not be had without the continuance. See Barney v. State, 698
S.W.2d 114, 127 (Tex. Crim. App. 1985) (holding defendant did not establish a
fair trial could not be had without continuance to investigate extraneous offense
that took place during trial).
Nevertheless, assuming without holding that the trial court erred in denying
Harris’s motion for continuance, Harris has not shown that he was prejudiced by
the denial. See Tex. Code Crim. Proc. Ann. art. 29.13; see also Gonzales v.
State, 304 S.W.3d 838, 842–43 (Tex. Crim. App. 2010) (holding, in context of
pretrial motion for continuance, that reversible error is predicated on both error in
the denial of the continuance and resultant harm). Furthermore, during argument
on the motion, the State admitted it was not going to use the medical records in
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its case-in-chief and when Harris’s counsel stated that he had not had time to
review the records in their entirety, the court responded:
[S]ince they are not using them in their case in chief—as [the
prosecutor said], he was going to rely upon the testimony of his
witness. I can also see that you would like to read them and go
through them in case there is anything exculpatory to you or your
client.
I am going to grant your motion for the additional investigative
funds. You have your investigator with you today. I am going to pay
him throughout the trial. I will deny your motion for a continuance, as
he’s not using it in his case in chief.
Harris did not reurge his continuance at any later time during the trial, nor does
he now articulate how the trial court’s approach of allowing the investigator to
review the records during the trial was insufficient or harmful.
And it does not appear that Harris was required to adjust his trial strategy
based on the production of the records. The extent or nature of Derrick’s injuries
played no role in Harris’s defense, which was to deny that he shot Derrick and,
instead, to proffer Brandon as the shooter. Absent a showing that he was
somehow prejudiced by the trial court’s denial of his continuance motion, Harris
has demonstrated no harm.
For these reasons, we overrule Harris’s third issue.
Conclusion
Having overruled Harris’s three issues, we affirm the judgment of the trial
court.
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/s/ Bonnie Sudderth
BONNIE SUDDERTH
JUSTICE
PANEL: SUDDERTH, KERR, and PITTMAN, JJ.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: March 30, 2017
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