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


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  • 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
    3
    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).
    4
    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
    5
    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
    7
    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
    8
    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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