Alban Cherry v. State ( 2020 )

In The
Court of Appeals
Ninth District of Texas at Beaumont
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NO. 09-19-00008-CR
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ALBAN CHERRY, Appellant
V.
THE STATE OF TEXAS, Appellee
________________________________________________________________________
On Appeal from the 356th District Court
Hardin County, Texas
Trial Cause No. 24732
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MEMORANDUM OPINION
Following a bench trial, Alban Cherry appeals his conviction for Aggravated
Assault with a Deadly Weapon – Family Violence, a second-degree felony. 1 See
Tex. Penal Code Ann. § 22.02; Tex. Fam. Code Ann. § 71.003. Cherry challenges
the legal and factual sufficiency of the evidence, arguing the evidence is insufficient
1
Cherry was charged with two separate crimes arising out of the same
incident. He was found not guilty under trial cause number 24734.
1
to demonstrate his mental culpability to harm the complainant. For the reasons
explained below, we affirm the trial court’s judgment.
Background
Several witnesses testified at trial. R.P., Cherry’s nephew, testified that he
lives in the trailer home of his grandmother, J.C., who is Cherry’s Mother. 2 R.P.
stated that on the afternoon of January 22, 2018, he and his grandmother had just
returned home. R.P. went to his room and heard Cherry say “tell [R.P.] to get out of
his room.” R.P. left his bedroom and found Cherry and J.C. arguing. Cherry then left
“out the door[,]” and R.P. followed him and stood on the back porch.
R.P. stated that Cherry got into his truck and backed it into the trailer.
According to R.P., J.C. was not outside when Cherry first began ramming the trailer.
R.P went back inside the residence to retrieve his computer, because he believed it
would get damaged by Cherry hitting the trailer with his truck. After R.P. returned
outside, he saw Cherry hit J.C. with his truck, and she fell to the ground.
Jeremy Slayter testified that he lives directly across the street from J.C. Slayter
stated that on January 22, 2018, he “heard a noise” that sounded like a “truck just
revved out[,]” and he went outside to investigate. Slayter stated that although he did
2
We refer to the victim and her family members by their initials to conceal
their identity. See Tex. Const. art. I, § 30(a)(1) (granting crime victims “the right to
be treated with fairness and with respect for the victim’s dignity and privacy
throughout the criminal justice process”).
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not see Cherry doing “donuts” in the yard, Cherry’s truck was sitting sideways as if
he had been doing “donuts.” As he stood on his front porch, Slayter observed Cherry
ramming his truck into J.C.’s trailer. J.C. and her daughter, W.C., were outside, and
J.C. was “hollering” at Cherry. Cherry then backed his truck up and struck J.C. with
his vehicle causing J.C. to be propelled backwards into the trailer. Slayter described
the assault as follows:
[J.C.] had ran from the front door towards the trailer where [Cherry]
had already backed into it and when [J.C.] threw her hands up, [Cherry]
just clipped her. [J.C.] ran right behind him. [Cherry] clipped [J.C] and
she flew backwards and hit the trailer.
According to Slayter, he observed Cherry ram his truck into the home “a couple” of
times. Slayter testified that after Cherry hit J.C. with his truck, he did not help J.C.
nor did Cherry show any type of concern for his mother’s injuries.
W.C.—Cherry’s sister, J.C.’s daughter, and R.P.’s mother—testified that she
and her children live with J.C. On January 22, 2018, W.C. stated she was asleep in
her room when she heard a loud bang. She went into the living room to investigate
the noise, and she “fell out the door as my brother rammed the trailer with his truck.”
W.C. testified that Cherry knew his family was in the trailer. She then observed
Cherry hit J.C. with his truck. She stated that the impact caused her mother to fly
back toward the trailer. W.C. called 911 and said that Cherry continued to ram the
trailer until he “got stuck in the mud.” According to W.C., Cherry did not help J.C.
after hitting her with his truck.
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J.C. testified that on January 22, 2018, Cherry was upset and went outside of
her home. She then heard a noise and ran outside. By the time she got outside, Cherry
had already hit her home with his truck and caused damage to her vehicle. When she
walked down to his truck, she did not believe Cherry saw her because his truck was
“loaded with all of his belongings: his blanket, his pillow, [and] his clothes.” J.C.
stated that after Cherry hit her, she went to the hospital for treatment of her injuries
by ambulance. She identified several photographs admitted at trial that showed
various injuries to her stomach and hands.
Deputy Tom Lee of the Hardin County Sheriff’s Department testified that he
investigated the disturbance at J.C.’s. home on January 22, 2018. During his
investigation, he spoke to several witnesses, collected evidence, took photographs
of the scene which were admitted at trial, and spoke to Cherry. 3 Deputy Lee testified
that
[Cherry] told me that there was some type of public hearing that he
wasn’t allowed to go to and that his grandmother’s dying wish was for
his sister not to live in the trailer and his mom was allowing her to live
there, so he was going to knock the trailer off the foundation.
3
Cherry’s trial counsel objected to any testimony regarding this conversation
arguing that Cherry was detained at the time but had not been Mirandized before any
investigatory questions. The trial court overruled trial counsel’s objection and
allowed Deputy Lee to testify about the conversation, stating it was “part of [Deputy
Lee’s] investigation.” Cherry does not raise this issue on appeal.
4
Deputy Lee then stated that in his experience as a law enforcement officer, vehicles
can be used as deadly weapons causing serious bodily injury or death. 4
Cherry did not testify at trial, and the defense rested without calling any
witnesses. The trial court found Cherry guilty of aggravated assault with a deadly
weapon, and after a separate bench trial regarding punishment, sentenced Cherry to
eight years’ incarceration in the Texas Department of Criminal Justice. Cherry
timely filed this appeal.
Standard of Review
When there is a claim of insufficiency of evidence, we review the evidence in
the light most favorable to the verdict to determine whether any rational factfinder
could have found the essential elements of the offense beyond a reasonable doubt.
See Brooks v. State, 323 S.W.3d 893, 899, 912 (Tex. Crim. App. 2010) (citing
Jackson v. Virginia, 443 U.S. 307 (1979)) (concluding the Jackson standard “is the
only standard that a reviewing court should apply” when examining the sufficiency
of the evidence); Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). In a
legal sufficiency review, we examine all evidence in the record, direct and
circumstantial, whether it is admissible or inadmissible. Dewberry v. State, 4 S.W.3d
4
Additional witnesses testified at trial, a Hardin County investigator testified
regarding the crime scene evidence and photographs, and a Hardin County
Dispatcher testified regarding the 911 recording admitted at trial, but their testimony
is not pertinent to our discussion of the issue presented on appeal.
5
735, 740 (Tex. Crim. App. 1999). The fact finder is the sole judge of the witnesses’
credibility and weight to be given to their testimony. Tate v. State, 500 S.W.3d 410,
413 (Tex. Crim. App. 2016). Fact finders may draw multiple reasonable inferences
so long as each inference is supported by the evidence presented at trial. Id. We must
defer to the fact finder’s determinations of weight and credibility of the witnesses.
See Brooks, 323 S.W.3d at 899.
Analysis
In his sole issue on appeal, Cherry challenges the sufficiency of the evidence
regarding his culpable mental state for Aggravated Assault with a Deadly Weapon
when he injured J.C. Specifically, Cherry argues that “there is no evidence of
criminal intent supporting a finding that [he] acted intentionally, knowingly or
recklessly[.]”5 A person commits the offense of Aggravated Assault with a deadly
5
We note that the amended indictment improperly lists the culpable mental
states for assault by threat, as “intentionally, knowingly, or recklessly[.]” Section
22.01(a)(2) defines the culpable mental states as “intentionally or knowingly
threaten[ing] another with imminent bodily injury, including the person’s spouse[.]”
Tex. Penal Code Ann. § 22.01(a)(2). This simple assault is elevated to aggravated
assault under section 22.02 if the person uses a deadly weapon in the commission of
the assault. See id. § 22.02(a)(2). As such, on review we focus on if the evidence is
legally and factually sufficient to show that Cherry “intentionally” or “knowingly”
threatened J.C. with bodily injury. See Johnson v. State, 364 S.W.3d 292, 294 (Tex.
Crim. App. 2012) (explaining that a statutory variance in the pleading and proof,
such as a crime with two alternative methods, one which was pled in the indictment
and the other proven at trial, is a failure to prove the statutory language and renders
the conviction legally insufficient). Further, an indictment is fundamentally
defective and will not support a conviction if a culpable mental state is an element
of an offense and the indictment fails to allege that element. See Ex Parte
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weapon if he intentionally or knowingly threatens bodily injury to another and uses
or exhibits a deadly weapon during the commission of the assault. Tex. Penal Code
Ann. §§ 22.01(a)(2), 22.02(a)(2). The Texas Penal Code defines intentionally and
knowingly in the following manner:
(a) A person acts intentionally, or with intent, with respect to the nature
of his conduct or to a result of his conduct when it is his conscious
objective or desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with knowledge, with respect to the
nature of his conduct or to circumstances surrounding his conduct when
he is aware of the nature of his conduct or that the circumstances exist.
A person acts knowingly, or with knowledge, with respect to a result of
his conduct when he is aware that his conduct is reasonably certain to
cause the result.
Id. § 6.03(a), (b) (emphasis added).
The Court of Criminal Appeals stated in Landrian v. State that assault as
defined under section 22.01(a)(2), is a “conduct-oriented” offense as opposed to the
“result oriented” offense of causing serious bodily injury under subsection
22.01(a)(1). 268 S.W.3d 532, 536 (Tex. Crim. App. 2008); see also Tex. Penal Code
Ann. § 22.01(a)(1)–(2).
The Texas Legislature has defined the crime of assault in Section 22.01
of the Penal Code. Subsection (a) of that provision sets out three
separate and distinct assaultive crimes, two of which are relevant to the
present discussion:
McWilliams, 634 S.W.2d 815, 818 (Tex. Crim. App. 1980). But here, an extraneous
mental state was included, in addition to those required by the statute.
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(a) A person commits an offense if the person:
(1) intentionally, knowingly, or recklessly causes bodily
injury to another, including the person’s spouse;
(2) intentionally or knowingly threatens another with
imminent bodily injury, including the person's spouse[.]
Subsection (1)—“bodily injury” assault— is a result-oriented
assaultive offense and normally a Class A misdemeanor. Subsection (2)
is conduct-oriented, focusing upon the act of making a threat, regardless
of any result that threat might cause. It is normally a Class C
misdemeanor.
Landrian, 268 S.W.3d at 536 (citations omitted).
“The essential focus of a result of conduct statute is to punish the defendant
for causing a specified result[.]” Dolkart v. State, 197 S.W.3d 887, 893 (Tex. App.—
Dallas 2006, pet. ref’d). In Dolkart, the Dallas Court of Appeals explained that in
contrast, assault by threat can only be conducted intentionally or knowingly, and its
intent is to punish the nature of the specified conduct, threatening others. Id. Thus,
we focus on the nature of the conduct and not the result of the conduct. See Brooks
v. State, 604 S.W.3d 239, 245 (Tex. App.—Austin 2020, no pet.) (quoting Landrian,
268 S.W.3d at 536). Displaying a deadly weapon within and of itself is a threat of
the requisite imminent harm. Id. (citations omitted). “The law does not require
evidence of threatening language or gestures to prove knowledge of intent.” Mitchell
v. State, 546 S.W.3d 780, 787 (Tex. App.—Houston [1st Dist.) 2018, no pet.)
(citation omitted). “By its nature, a culpable mental state must generally be inferred
from the circumstances[,]” and this is because “[w]e cannot read an accused’s mind,
and absent a confession, we must infer his mental state from his ‘acts, words and
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conduct.’” Nisbett v. State, 552 S.W.3d 244, 267 (Tex. Crim. App. 2018) (citations
omitted). This includes the accused’s method of committing the crime. See Nguyen
v. State, 506 S.W.3d 69, 75–76 (Tex. App.—Texarkana 2016, pet. ref’d) (citation
omitted).
Cherry argues that the evidence does not show that he acted intentionally,
knowingly or recklessly when he injured J.C. and further contends that “the acts
alleged more accurately fit within the definition of negligence rather than
recklessness and there is no evidence of an awareness and conscious disregard of a
risk.” We disagree. The evidence clearly shows that Cherry intentionally and
knowingly threatened bodily injury to J.C. while ramming his truck into her home.
Because the evidence was sufficient to prove Cherry acted intentionally and
knowingly, it is necessarily sufficient to prove the lesser culpable mental state of
reckless. See id. (explaining that because evidence was sufficient to prove the
defendant acted intentionally, it was necessarily sufficient to prove lesser culpable
mental states of knowing and reckless); see also Tex. Penal Code Ann. § 6.02(e)
(“Proof of a higher degree of culpability than that charged constitutes proof of the
culpability charged.”).
The amended indictment alleged that Cherry
INTENTIONALLY, KNOWINGLY OR RECKLESSLY
THREATEN[ED] [J.C.] WITH IMMINENT BODILY INJURY BY
STRIKING . . . [J.C.] WITH A MOTOR VEHICLE, AND DID THEN
AND THERE USE[D] OR EXHIBIT[ED] A DEADLY WEAPON,
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. . . A MOTOR VEHICLE, THAT IN IT’S USE AND INTENDED
USE WAS CAPABLE OF CAUSING DEATH OR SERIOUS
BODILY INJURY, DURING THE COMMISSION OF THE
ASSAULT[.]
Cherry admitted to police he intended to knock the home off its foundation. This
admission in itself is sufficient to show he intentionally or knowingly threatened J.C.
See Mitchell, 546 S.W.3d at 787 (explaining that evidence sufficient to show
appellant intentionally or knowingly threatened a police officer with assault when
he admitted that he intended to threaten the officer or “inflict fear”). Importantly,
testimony also established Cherry knew that J.C. and several family members were
inside the home when he began to hit the house with his vehicle and still attempted
several times to knock the home off its foundation. With a conduct-oriented offense,
his conduct of ramming his truck into J.C’s home, while fully aware that J.C. was
still in her home, is sufficient to demonstrate that Cherry exhibited one of the
prerequisite culpable mental states for assault by threat. See Landrian, 268 S.W.3d
at 536; Brooks, 604 S.W.3d at 245; see also Mills v. State, 440 S.W.3d 69, 72 (Tex.
App.—Waco 2012, pet. ref’d) (explaining that because assault by threat is a conduct
oriented assault, we focus the “act of making a threat” and not the result, noting that
the appellant’s “threat, and therefore the assault” was the act of pushing the victim
with his vehicle, and not whether the victim was actually harmed); Dobbins v. State,
228 S.W.3d 761, 765 (Tex. App.—Houston [14th Dist.] 2007, pet. dism’d)
(explaining that evidence was sufficient to show that appellant intentionally or
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knowingly threatened the victim because he saw the victim in front of him and still
drove his car towards him); see also Barnes v. State, No. 14-18-00689-CR, 2020
WL 2026033, at *4 (Tex. App.—Houston [14th Dist.] Apr. 28, 2020, pet. filed)
(describing the defendant’s conduct including threatening statements and actions as
sufficient to be “interpreted” as a threat). Therefore, viewing the evidence in the light
most favorable to the verdict, we conclude that the evidence is legally sufficient to
support Cherry’s conviction. See Tex. Penal Code Ann. §§ 22.01(a)(2), 22.02(a)(2).
Although the indictment contained a culpable mental state not found in the
statute, this is not a fatal variance as described by the Court of Criminal Appeals in
Williams v. State, 270 S.W.3d 140, 144 n.2 (Tex. Crim. App. 2008). In Williams, the
Court explained that “‘[i]n a variance situation, the State has proven the defendant
guilty of a crime, but has proven its commission in a manner that varies from the
allegations in the charging instrument.’” Id. (quoting Gollihar v. State, 46 S.W.3d
243, 246 (Tex. Crim. App. 2001)). Williams then explained that no fatal variance
existed in the record since the allegations in the indictment corresponded with the
evidence at trial. See id. We are presented with a similar case. Here, although
“recklessly” was incorrectly added to the indictment, the mental states of
“intentionally” and “knowingly” were also included and evidence was presented at
trial sufficient for a fact finder to determine beyond a reasonable doubt as to those
statutory culpable mental states. See id.; see also Rabb v. State, 434 S.W.3d 613, 617
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(Tex. Crim. App. 2014) (quoting Cada v. State, 334 S.W.3d 766, 776 (Tex. Crim.
App. 2011)) (“In order to prevail in any prosecution, ‘the State must prove the
statutory elements that it [chose] to allege, not some other alternative statutory
element that it did not allege.’”). We overrule this issue.
Conclusion
We note that neither party brought to this Court’s attention that the trial court’s
judgment reflects an incorrect recitation of Cherry’s plea to the trial court. The
judgment reflects that Cherry pled “GUILTY” to the offense. That is incorrect.
Cherry pled “Not guilty.” As such, we modify the judgment of the trial court to
reflect the plea designation by Cherry. See Tex. R. App. P. 43.2(b); Bigley v. State,
865 S.W.2d 26, 27 (Tex. Crim. App. 1993) (explaining the Court’s authority to
reform the trial court’s judgment to correct clerical errors). The trial court’s
judgment is modified to reflect that Cherry pled “Not guilty” to the offense.
Accordingly, we overrule Cherry’s sole issue and affirm the trial court's judgment
as modified.
AFFIRMED AS MODIFIED.
________________________________
CHARLES KREGER
Justice
Submitted on April 30, 2020
Opinion Delivered September 30, 2020
Do Not Publish
Before McKeithen, C.J., Kreger, and Horton, JJ.
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