Marlene Alexandria Jackson v. the State of Texas ( 2021 )

Affirmed and Memorandum Opinion filed August 12, 2021.
In The
Fourteenth Court of Appeals
NO. 14-19-00739-CR
MARLENE ALEXANDRIA JACKSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 56th District Court
Galveston County, Texas
Trial Court Cause No. 18-CR-2878
MEMORANDUM OPINION
Appellant Marlene Alexandria Jackson was convicted of harassment of a
public servant, a third-degree felony. See Tex. Penal Code Ann. § 22.11(a)(3), (b).
In two issues, appellant argues: (1) the trial court erred by overruling her objection
to the jury charge; and (2) her conviction was not supported by legally sufficient
evidence. We affirm.
I. BACKGROUND
Appellant’s indictment alleged that on September 12, 2018, with the intent
to assault, harass, or alarm, she caused her saliva to contact Judge Carlton Getty
while he was discharging his official duty of reading magistrate warnings to her.
See id.A. TRIAL TESTIMONY
Jury trial began on August 19, 2019. Robert Wood testified that he
performed bailiff duties in the municipal court. According to Wood, he took
appellant from the Santa Fe jail to Judge Getty’s office for magistration on
September 12, 2018. Wood testified that the room had no cameras and that the
only people with him in the room were appellant and Judge Getty. Wood said that
when appellant was informed of the charges against her, she became angry.
According to Wood, when Judge Getty reached his hand across the table to pull the
papers back to him, appellant spat on the paperwork and Judge Getty’s right hand.
Wood claimed that appellant leaned forward and spat a single time.
Judge Getty testified that appellant spit on him immediately as he placed his
hand on the paper. According to Judge Getty, the paper was in front of appellant
for a minute or so before his hand was near the paper. Judge Getty claimed that if
appellant wanted to spit only on the paper, she had ample opportunity to do so.
Judge Getty testified that the spit landed on both the paper and his hand. He
claimed that he was offended and harmed “psychologically” because he did not
“know whether [he] ha[d] been infected with something or not.”
Appellant admitted that she knew Judge Getty was a judge. She claimed that
she never signed the paperwork; instead, she spit where her signature was
supposed to go. She testified that she was surprised when Judge Getty alleged that
she spit on him because that was not her intention. According to appellant, her spit
must have bounced or jumped off the paper and hit his hand. Appellant testified
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she was not angry at the time, but upset and crying, and that she was aiming to spit
on the paper, but not at the judge.
At the conclusion of the trial testimony, the trial court noted that both sides
submitted a proposed charge. The defense objected to the State’s charge.
B. OBJECTION TO THE STATE’S PROPOSED JURY CHARGE
The State’s proposed jury charge contained the following three
paragraphs:
A person acts intentionally, or with intent, with respect to the nature
of her conduct or to a result of her conduct when it is her conscious
objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the
nature of her conduct or to circumstances surrounding her conduct
when she is aware of the nature of her conduct or that the
circumstances exist. A person acts knowingly, or with knowledge,
with respect to a result of her conduct when she is aware that her
conduct is reasonably certain to cause the result.
A person acts recklessly, or is reckless, with respect to the result of
her conduct when she is aware of but consciously disregards a
substantial and unjustifiable risk that the result will occur. The risk
must be of such a nature and degree that its disregard constitutes a
gross deviation from the standard of care that an ordinary person
would exercise under all the circumstances, as viewed from the
actor’s standpoint.
Appellant objected to these three paragraphs, arguing:
I object to three paragraphs in the state’s charge. The first paragraph is
that one that begins on bottom of Page 1, defining intentionally and
the top two paragraphs on Page 2, defining knowingly and recklessly.
We object to those being included because this is a specific intent
crime and those are general mental states. But beyond that, we have
no other objections to the State’s charge.
The State responded that the word “assault” is in the statute, and therefore had to
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be defined.1 The State argued that the charge further required the definitions of the
mental states of intentionally, knowing, and recklessly, as the mental state were
necessary to the assault charge. The State then argued, “And then the application
paragraph correctly applies on the specific mental state, not intentionally,
knowingly, or recklessly. So I think the charge as written complies with the statute
and is really required to fully define assault for this jury.” The trial court overruled
appellant’s objection.
The jury returned a guilty verdict and assessed punishment at three years’
confinement in the Texas Department of Criminal Justice Institutional Division.
Appellant timely filed this appeal.
II. ANALYSIS
In two issues, appellant argues that (1) the trial court erred by overruling her
objection to the jury charge and (2) there was legally insufficient evidence to
support her conviction. We will address her sufficiency argument first.
A. LEGAL SUFFICIENCY
1. STANDARD OF REVIEW & APPLICABLE LAW
We apply a legal-sufficiency standard of review in determining whether the
evidence supports each element of a criminal offense that the State is required to
prove beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318–19
(1979); Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); see
also Gear v. State, 340 S.W.3d 743, 746 (Tex. Crim. App. 2011). Under this
standard, we examine all the evidence adduced at trial in the light most favorable
to the verdict to determine whether a jury was rationally justified in finding guilt
beyond a reasonable doubt. Temple, 390 S.W.3d at 360; Criff v. State, 438 S.W.3d
134, 136–37 (Tex. App.—Houston [14th Dist.] 2014, pet. ref’d). We consider all
1
See Tex. Penal Code Ann. § 22.11(a)(3), (b).
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evidence in the record, whether admissible or inadmissible. Winfrey v. State, 393
S.W.3d 763, 767 (Tex. Crim. App. 2013). We also consider both direct and
circumstantial evidence, as well as any reasonable inferences that may be drawn
from the evidence. Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
We will uphold the jury’s verdict unless a rational factfinder must have had
reasonable doubt as to any essential element. Laster v. State, 275 S.W.3d 512, 518
(Tex. Crim. App. 2009); West v. State, 406 S.W.3d 748, 756 (Tex. App.—Houston
[14th Dist.] 2013, pet. ref’d).
We do not, however, re-evaluate the weight and credibility of the evidence
or substitute our judgment for that of the fact finder. Williams v. State, 235 S.W.3d
742, 750 (Tex. Crim. App. 2007). Because the jury is the sole judge of the
witness’s credibility and the weight given their testimony, we resolve any
evidentiary conflicts or inconsistencies in favor of the verdict. See Isassi v. State,
330 S.W.3d 633, 643 (Tex. Crim. App. 2010) (“As long as the jury’s finding of a
culpable intent ‘is supported by a reasonable inference, it is within the province of
the factfinder to choose which inference is most reasonable.’”); Bargas v. State,
252 S.W.3d 876, 887 (Tex. App.—Houston [14th Dist.] 2008, no pet.) (“The jury
may choose to believe or disbelieve any portion of the witnesses’ testimony.”).
Sufficiency is measured by the elements of the offense as defined by a
hypothetically correct jury charge and as authorized in the indictment. Zuniga v.
State, 551 S.W.3d 729, 733 (Tex. Crim. App. 2018) (citing Malik v. State, 953
S.W.2d 234, 240 (Tex. Crim. App. 1997)). “The hypothetically correct jury 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. (quoting Malik, 953 S.W.2d at 240). “The ‘law
as authorized by the indictment’ includes the statutory elements of the offense and
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those elements as modified by the indictment.” Id. (quoting Daugherty v. State,
387 S.W.3d 654, 665 (Tex. Crim. App. 2013)). Our use of the hypothetically
correct jury charge ensures a judgment of acquittal is reserved for cases in which
there is an actual failure in the State’s proof of the crime, rather than a mere error
in the jury charge. McCombs v. State, 562 S.W.3d 748, 759 (Tex. App.—Houston
[14th Dist.] 2018, no pet.) (citing Malik, 953 S.W.2d at 240).
In this case, such a charge would state that appellant committed the offense
of harassment of a public servant if, with the intent to assault, harass, or alarm, she
caused Judge Getty, a person whom appellant knew to be a municipal judge, to
contact her saliva while Judge Getty was lawfully discharging an official duty by
reading magistrate warnings to appellant.2
2. APPLICATION
Appellant argues that the evidence as to intent was ambiguous and thus
improperly invited the jury to speculate that she intentionally caused her saliva to
contact Judge Getty.
Intent is rarely subject to direct evidence. See Gomez v State, 499 S.W.3d
558, 563 (Tex. App—Houston [1st Dist.] 2016, pet. ref’d). Thus, the question here
is whether the jury could reasonably infer beyond a reasonable doubt, based on
appellant’s words, acts, and conduct, that she intentionally caused her saliva to
contact Judge Getty with the intent to assault, harass, or alarm him. See id.Testimony from Wood and Judge Getty established that appellant spat on
Judge Getty’s hand as he reached for the paper in front of appellant. Judge Getty
testified that appellant had the opportunity to spit on only the paper, but she did not
do so. Instead, according to Judge Getty, appellant spat on his hand immediately
after he placed his hand on the paper. Both Wood and Judge Getty testified that
2
See id.6
appellant leaned forward as she spit and leaned back afterwards. Appellant
contends that the salvia’s contact with Judge Getty “was consistent with accident
rather than specific intent.” However, the evidence supported an inference that
appellant acted intentionally in causing her saliva to contact Judge Getty.
Although initially denying she was angry, appellant later admitted during
cross-examination that what was going through her mind at the time she spit that
she was “pissed off” and “that it’s bullshit.” She testified she was initially told she
was not going to be charged, but when she tried to speak about it, nobody cared;
she was “angry at the charge.” Appellant also admitted she was high on
methamphetamine the night before, damaged the mat in her cell, threw wet toilet
paper at the cell cameras, and said she did not know at the time that it was a felony
to spit on a judge, knew now, and had a lot to lose if she did not deny intent.
It is within the province of the jury to make reasonable inferences from the
evidence and to reject appellant’s argument that her saliva contacted Judge Getty
accidentally. See Isassi, 330 S.W.3d at 643. Appellant acknowledges that the jury
was free to disregard her testimony. See Bargas, 252 S.W.3d at 887. Viewing the
evidence in the light most favorable to the verdict, we conclude that legally
sufficient evidence supports a reasonable inference that appellant intentionally
caused her saliva to contact Judge Getty. See Temple, 390 S.W.3d at 360; Isassi,
330 S.W.3d at 643.
We overrule appellant’s second issue.
B. JURY CHARGE ERROR
We will now address appellant’s first issue regarding jury charge error.
1. APPLICABLE LAW & STANDARD OF REVIEW
In each felony case, 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. As law applicable to the case, “the definitions of words or phrases
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defined by statute must be included in the jury charge.” Arteaga v. State, 521
S.W.3d 329, 334 (Tex. Crim. App. 2017); Villarreal v. State, 286 S.W.3d 321, 329
(Tex. Crim. App. 2009) (noting that the jury must be instructed regarding statutory
definitions affecting the meaning of an element of the offense).
In analyzing a jury charge issue, we first determine whether error exists. See
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g). “Only if we find error do
we then consider whether an objection to the charge was made and analyze for
harm.” Tottenham v. State, 285 S.W.3d 19, 30 (Tex. App.—Houston [1st Dist.]
2009, pet. ref’d). If the alleged jury charge error was properly preserved, reversal is
required if it is shown that the error caused some harm. Reeves v. State, 420
S.W.3d 812, 816 (Tex. Crim. App. 2013).
2. APPLICATION
Appellant argues that the trial court erred by including definitions of general
mental states in the jury charge. However, the “definitions of words or phrases
defined by statute must be included in the jury charge.” Arteaga, 521 S.W.3d at
334. The jury charge in the present case set out the harassment of a public servant
statute, which contains the word “assault.” See Tex. Penal Code Ann. § 22.11(a).
As applicable here, assault is an element of the offense and is statutorily defined as
“intentionally or knowingly caus[ing] physical contact with another when the
person knows or should reasonably believe that the other will regard the contact as
offensive or provocative.” Id. § 22.01(a)(3). Even though not applicable to the
elements of the charged offense, “recklessly” is included under another definition
of “assault.” Id. § 22.01(a)(1). “Intentionally,” “knowingly,” and “recklessly” are
all statutorily defined. See id. § 6.03(a)-(c). Thus, the trial court did not err by
including the definitions of “intentionally,” “knowingly,” and “recklessly” in the
jury charge. See id. §§ 6.03, 22.01(a); Arteaga, 521 S.W.3d at 334; Ngo, 175
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S.W.3d at 743.
Even assuming, arguendo, that there was error, appellant has not
demonstrated that she was harmed. See Ngo, 175 S.W.3d at 743. The application
paragraph of the jury charge properly tracked the indictment and the Texas Penal
Code. See Tex. Penal Code Ann. § 22.11(a). Although the abstract portion of the
charge included definitions of assault which did not correlate to the conduct
elements of the present offense, the application paragraph did not apply those
definitions. During trial, the State suggested or inferred that appellant could be
convicted absent a finding of specific intent. During closing argument, appellant
emphasized that specific intent was required to convict her; the State did not
object. Instead, the State argued in its closing argument that appellant had the
specific intent of spitting on Judge Getty. And in response to the multiple notes
sent to the court from the jury to which the judge responded, “refer to the charge,”
the jury quickly returned a unanimous verdict. Based on the evidence, the
arguments, the jury charge, and the entirety of the case, there is no showing of
harm to appellant. See Reeves, 420 S.W.3d at 816.
We overrule appellant’s first issue.
III. CONCLUSION
We affirm the trial court’s judgment.
/s/ Margaret “Meg” Poissant
Justice
Panel consists of Justices Jewell, Poissant, and Wilson.
Do Not Publish — Tex. R. App. P. 47.2(b).
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