Tommy Ray Oaks v. State ( 2011 )

COURT OF APPEALS
SECOND DISTRICT OF TEXAS
FORT WORTH
NO. 02-10-00357-CR
TOMMY RAY OAKS APPELLANT
V.
THE STATE OF TEXAS STATE
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FROM THE 396TH DISTRICT COURT OF TARRANT COUNTY
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MEMORANDUM OPINION1
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I. INTRODUCTION
A Tarrant County jury found Appellant Tommy Ray Oaks guilty of the
felony offense of aggravated assault. The trial court assessed his punishment,
enhanced by one prior felony conviction, at imprisonment for twenty years. In
this appeal Appellant alleges that no rational jury could have determined the
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See Tex. R. App. P. 47.4.
complainant suffered serious bodily injury and that his trial counsel was
ineffective. We will affirm the judgment of the trial court.
II. BACKGROUND
On February 18, 2010, a Tarrant County grand jury returned an indictment
charging Appellant with aggravated assault under Texas Penal Code
§ 22.02(a)(1) (assault causing serious bodily injury). The grand jury, through its
indictment, alleged that on or about November 13, 2009, Appellant ―intentionally
or knowingly commit[ted] assault on Reginald Walker by striking him with
[Appellant‘s] hand or by striking him with [Appellant‘s] foot and caused serious
bodily injury to [him].‖
On August 10, 2010, the State brought Appellant to trial before a petit jury.
At the guilt or innocence stage of the trial, the State presented evidence that late
on the afternoon of November 13, 2009, Appellant walked into an ―ABC‖
convenience store in Fort Worth and assaulted Reginald Walker with his hand
and his foot without provocation. The State‘s evidence showed Walker was the
husband of Appellant‘s girlfriend. The State also presented evidence that in the
course of Appellant‘s assault on Walker, he fractured Walker‘s jawbone and the
radius and ulna bones in Walker‘s left forearm.
Dr. Kathryn Heim, an orthopedic surgeon, testified that on November 14,
2009, Walker‘s fractured radius and ulna bones were surgically repaired at John
Peter Smith Hospital in Fort Worth. She testified further that later that month, an
oral and maxillofacial surgeon surgically repaired Walker‘s fractured jawbone.
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She testified further that Walker would have been left with a permanently
deformed and dysfunctional arm and a permanently dysfunctional jaw without
those two surgeries. Walker himself testified that his left arm was ―weaker than it
used to be‖ and that ―sometimes it‘s a little bit difficult [for him] to chew food‖
even after the two surgeries.
Appellant presented evidence that at the time and place in question, he
reasonably feared that Walker was about to assault him and that he therefore
acted against Walker in self-defense. The record reflects that the trial court
instructed the jury on the law of self-defense.
III. POINT NUMBER ONE
In his first point, Appellant argues that the evidence is insufficient to
support his conviction because ―no rational [jury] could have found the element of
‗serious bodily injury‘ to be present beyond a reasonable doubt.‖ Appellant
points out that Dr. Heim testified that because Walker‘s injuries were repaired
surgically, he could have ―a small amount of residual loss of function.‖
The State argues in response that the evidence is sufficient to prove
serious bodily injury because Dr. Heim testified that without the two surgeries,
Walker would have been left with permanent deformity and dysfunction. The
State argues further that ―the relevant issue is the disfiguring and impairing
quality of the bodily injury as it was inflicted, not after the effects have been
ameliorated [with] medical treatment.‖
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Consistent with the Fourteenth Amendment‘s guarantee of due process of
law, a criminal defendant may not be convicted and deprived of his liberty except
upon proof beyond a reasonable doubt. In re Winship, 397 U.S. 358, 364, 90
S. Ct. 1068, 1072–73 (1970). In assessing the sufficiency of the evidence under
the Fourteenth Amendment Due Process Clause to support a criminal conviction,
an appellate court must consider all the record evidence in the light most
favorable to the jury‘s verdict and must determine whether, based on that
evidence and all reasonable inferences therefrom, any rational trier of fact could
have found the defendant guilty of all the elements of the offense beyond a
reasonable doubt. Griffin v. State, 614 S.W.2d 155, 159 (Tex. Crim. App. 1981).
In that analysis, the elements of the offense are defined by the hypothetically
correct jury charge for the case. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim.
App. 1997). Such a charge is one that accurately sets out the law, is authorized
by the indictment, does not unnecessarily increase the State‘s burden of proof or
unnecessarily restrict the State‘s theories of liability, and adequately describes
the particular offense for which the defendant was tried. Id.
The hypothetically correct jury charge for this case would state the
elements of the charged offense as follows: (1) Appellant (2) knowingly or
intentionally (3) caused serious bodily injury to Walker (4) by striking him with
Appellant‘s hand or foot. In this context, ―serious bodily injury‖ is statutorily
defined as ―bodily injury that creates a substantial risk of death or that causes
death, serious permanent disfigurement, or protracted loss or impairment of the
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function of any bodily member or organ.‖ Tex. Pen. Code Ann. § 1.07(a)(46)
(West 2011).
As we noted previously, Appellant argues that based on the evidence
adduced at trial, no rational trier of fact could have found him guilty of the third
element—that he caused serious bodily injury to Walker—beyond a reasonable
doubt. Appellant does not challenge the sufficiency of the evidence to support
the other elements.
We are not persuaded by Appellant‘s argument. As we noted previously,
Dr. Heim testified that Walker would have been left with a permanently deformed
and dysfunctional arm and a permanently dysfunctional jaw without the
surgeries. And Walker testified that even after the two surgeries, his arm was
weaker than it had been before the assault and that he sometimes had difficulty
chewing his food. From this evidence, a rational trier of fact could have
concluded beyond a reasonable doubt that Appellant‘s assault on Walker left him
with injuries that, in themselves, would be permanently disfiguring and/or would
cause protracted loss of bodily function. As the State points out, the issue within
the contemplation of the aggravated assault statute was the disfiguring and
impairing quality of the injuries as they were originally inflicted, not as they were
after ameliorative medical treatment. Brown v. State, 605 S.W.2d 572, 577 (Tex.
Crim. App. 1980), overruled on other grounds by Hedicke v. State, 779 S.W.2d
837 (Tex. Crim. App. 1989). A defendant who commits aggravated assault
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causing serious bodily injury does not get a legal windfall simply because the
victim has good medical care. We overrule Appellant‘s first point.
IV. POINT NUMBER TWO
In his second point, Appellant argues that his trial counsel rendered
constitutionally ineffective assistance by failing to request a jury instruction on the
lesser included offense of misdemeanor assault causing bodily injury. See Tex.
Pen. Code Ann. § 22.01(a)(1) (West 2011); Tex. Code Crim. Proc. Ann.
§ 37.09(2) (West 2006); 43 George E. Dix et al., Texas Practice: Criminal
Practice and Procedure § 43:48 (3d ed. 2011) (―[I]t is clear that an offense [such
as misdemeanor assault] requiring proof only of ‗bodily injury‘ is a lesser included
offense of an otherwise identical offense [such as aggravated assault] requiring
‗serious bodily injury.‘‖). Appellant argues that ―[t]he jury [at his trial] could have
rationally believed that [Walker‘s] injury was simply bodily injury.‖ Appellant
argues further that his trial counsel‘s failure to request an instruction on
misdemeanor assault was ―obvious on its face‖ and had no possible strategic
basis. Finally, Appellant argues that he was harmed by his trial counsel‘s
deficient performance because it exposed him to a greater range of punishment.
The State argues in response that Appellant‘s trial counsel did not render
ineffective assistance by failing to request a jury instruction on the lesser
included offense of misdemeanor assault because there was no evidence at trial
to support such an instruction. The State argues further that even if there had
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been such evidence at trial, trial counsel‘s decision to forgo an instruction on the
lesser included offense could have been reasonable trial strategy.
The Sixth Amendment to the United States Constitution provides that ―[i]n
all criminal prosecutions, the accused shall enjoy the right . . . to have the
Assistance of Counsel for his defence.‖ U.S. Const. amend. VI. This right was
made applicable to state felony prosecutions by the Due Process Clause of the
Fourteenth Amendment. Gideon v. Wainwright, 372 U.S. 335, 342–45, 83 S. Ct.
792, 795–97 (1963). This right to counsel is not merely the right to have counsel
physically present in the courtroom; it is the right to have the reasonably effective
assistance of counsel in the courtroom. McMann v. Richardson, 397 U.S. 759,
771 n.14, 90 S. Ct. 1441, 1449, n.14 (1970).
In the usual case, in order to obtain a reversal of his conviction on the
basis of ineffective assistance of counsel, an appellant must demonstrate both
deficient performance and prejudice. That is, he must demonstrate that:
(1) defense counsel‘s professional performance fell below an objective standard
of reasonableness and (2) there is a reasonable probability that but for defense
counsel‘s unprofessional errors, the result of the proceeding would have been
different. Strickland v. Washington, 466 U.S. 668, 687–88, 104 S. Ct. 2052,
2064 (1984); Cannon v. State, 252 S.W.3d 342, 348–49 (Tex. Crim. App. 2008).
In the absence of evidence of counsel‘s reasons for the challenged
conduct, an appellate court must assume a strategic motivation if any can
possibly be imagined, and it may not conclude that the challenged conduct
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constituted deficient performance unless the conduct was so outrageous that no
competent attorney would have engaged in it. Garcia v. State, 57 S.W.3d 436,
440 (Tex. Crim. App. 2001), cert. denied, 537 U.S. 1195, 123 S. Ct. 1351 (2003).
An instruction on a lesser included offense requested by the defense is
required only if the following two conditions are met: (1) the lesser offense is a
lesser included offense (of the greater charged offense) as defined by Texas
Code of Criminal Procedure article 37.09 and (2) there is some evidence in the
record that would permit a rational jury to find that the defendant, if guilty, is guilty
only of the lesser included offense. Rousseau v. State, 855 S.W.2d 666, 672
(Tex. Crim. App.), cert. denied, 510 U.S. 919 (1993). With respect to the second
condition, it is insufficient that the jury might disbelieve evidence pertaining to the
greater offense; rather, there must be some evidence directly germane to the
lesser offense for the jury to consider before an instruction on the lesser offense
is warranted. Schweinle v. State, 915 S.W.2d 17, 19 (Tex. Crim. App. 1996).
Given the record evidence and the relevant principles of law, we are
unpersuaded by Appellant‘s claim of ineffective assistance of counsel. First, we
note that the record contains no evidence of the reason or reasons why
Appellant‘s trial counsel did not request an instruction on the lesser included
offense of misdemeanor assault. Given the evidence adduced at trial, trial
counsel could have reasonably concluded that Appellant was not legally entitled
to such an instruction because the evidence did not warrant it. See Ex parte
Chandler, 182 S.W.3d 350, 356 (Tex. Crim. App. 2005) (―[A] reasonably
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competent counsel need not perform a useless or futile act, such as requesting a
jury instruction to which the defendant is not legally entitled . . . .‖) (footnote
omitted). As we noted previously, the testimony of Walker and Dr. Heim
supported a jury finding of serious bodily injury, and there was no evidence
presented at trial to dispute their testimony on that matter. In other words, there
was no evidence directly germane to misdemeanor assault for the jury to
consider.
It may also have been that trial counsel‘s strategy was to ―go for broke‖
with the self-defense theory (see discussion above). The record reflects that
during closing argument, trial counsel argued at great length that the jury should
acquit Appellant on the ground he felt threatened and acted in self-defense when
he assaulted Walker. Although that trial strategy was not ultimately successful,
we cannot say now in hindsight that it was so outrageous that no competent
attorney would have engaged in it. We overrule Appellant‘s second point.
V. CONCLUSION
Having overruled both of Appellant‘s points on appeal, we affirm the
judgment of the trial court.
PER CURIAM
PANEL: CHARLES R. HOLCOMB (Senior Judge, Retired, Sitting By
Assignment); LIVINGSTON, C.J.; and GABRIEL, J.
DO NOT PUBLISH
Tex. R. App. P. 47.2(b)
DELIVERED: June 23, 2011
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