DONNELL v. STATE

No. 05-16-00419-CR.

TAMMI L. DONNELL, Appellant, v. THE STATE OF TEXAS, Appellee.

Court of Appeals of Texas, Fifth District, Dallas.


Attorney(s) appearing for the Case

Lawrence B. Mitchell , for Tammi Donnell, Appellant.

Faith Johnson , Anne B. Weatherholt , for State of Texas.

Before Justices Francis, Brown, and Schenck.


DO NOT PUBLISH. TEX. R. APP. P. 47

MEMORANDUM OPINION

Opinion by Justice DAVID J. SCHENCK.

Tammi L. Donnell appeals her conviction for aggravated assault with a deadly weapon. In two issues, she argues (1) the evidence is insufficient to support a finding that she and the victim were members of the same household and (2) the trial court erred in sustaining the State's objection to her jury arguments during the punishment phase. By cross-issue, the State requests we modify the judgment to include an affirmative finding of family violence. As modified, we affirm the trial court's judgment. Because all issues are settled in law, we issue this memorandum opinion. TEX. R. APP. P. 47.4.

FACTUAL AND PROCEDURAL BACKGROUND

William Curren lived in Dallas and worked as a nurse at the Dallas County jail. Around 2007 or 2008, Curren allowed Keenan Cloud to move in with him. The two men got along. Curren did not charge Cloud any rent because Cloud had no money. Instead, Cloud helped around the house. In October 2013, Cloud moved his girlfriend, appellant, into Curren's house. Although Curren knew of her, he did not meet appellant until she had already moved into Cloud's bedroom. Curren was initially angry that Cloud moved appellant into his house without asking permission, but Curren and appellant entered into a rental agreement for a period of six months. Although appellant paid Curren $200 initially, Curren did not require her to pay any additional rent because she did not have any money. He told her to save her money to find another place to live at the end of the six month period. At some point, Cloud moved out, and appellant remained living in Curren's house. In April 2014, appellant's lease term expired, but Curren agreed to allow her to stay until the end of May 2014. During that time, Curren helped appellant look for a new place to live by driving her to apartments and paying her application fees.

On or about May 27, 2014, Curren and a friend of his met with appellant to inquire as to whether she had found another place to live. Appellant reacted poorly. She became hysterical and threatened that "[i]f someone tries to make me leave somebody's going to get hurt." Curren called the police, who spoke with appellant, but told Curren they could not evict appellant. Curren left his house to stay with his friend for a few days.

Curren returned to his house the night of May 30, 2014. Within a short time of his arrival, appellant walked up to Curren and sprayed him in the face with pepper spray. Appellant and at least one other assailant bludgeoned Curren with a flat iron, which Curren managed to wrestle away and throw through a window. At one point during the assault, Curren looked up and recognized Cloud as one of his assailants. Appellant sat on Curren while she and Cloud continued to attack Curren, hit him about the head with metal objects, stabbed at his neck with a knife, and poured scalding hot water on him. Eventually appellant got off of Curren, and Curren was able to wrestle the knife away from her and escape to the master bathroom where he barricaded himself inside and yelled for help from the window. When Curren thought appellant and her accomplices had left the house, he crawled to a phone and called the police.

A grand jury indicted appellant for aggravated assault with a deadly weapon, causing serious bodily injury and involving family violence. Appellant pleaded not guilty and proceeded to trial before a jury who found appellant guilty of the charged offense and sentenced appellant to twenty-five years' imprisonment.

DISCUSSION

I. SUFFICIENCY OF THE EVIDENCE

In her first issue, appellant argues the evidence was insufficient to support one of the elements of the charged offense, specifically the finding that appellant and Curren were members of the same household at the time of the commission of the offense. She alleges the evidence shows that three days before the assault, Curren—the sole owner of the house—had ordered her to vacate the premises such that from that point forward, appellant was no longer a member of Curren's household.

A. Standard of Review

When conducting a legal-sufficiency review, a court must ask whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 318-19 (1979). In so doing, we assess the evidence in the light most favorable to the prosecution. Id. This same standard applies equally to circumstantial and direct evidence. Burden v. State, 55 S.W.3d 608, 613 (Tex. Crim. App. 2001). The jury is the sole judge of credibility and weight to be attached to the testimony of witnesses. Jackson, 443 U.S. at 319. When the record supports conflicting inferences, we presume that the jury resolved the conflicts in favor of the verdict, and we defer to that determination. Id.

B. Applicable Law

A person commits aggravated assault when that person, with the requisite mental intent, causes serious bodily injury or uses a deadly weapon. TEX. PENAL CODE ANN. §§ 22.01(a)(1), 22.02 (a)(1), (2) (West 2016). The offense is a first degree felony when the defendant uses the deadly weapon during the commission of the assault and causes serious bodily injury to a person who is a member of the defendant's household as defined by the family code. See id. § 22.02(b)(1); TEX. FAM. CODE ANN. § 71.005 (West 2016). The family code defines "household" as a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other. FAM. § 71.005.

C. Application of Law to Facts

The record shows that appellant lived with Curren under a six month lease agreement from October 2013 through April 2014 and that they agreed to extend the lease agreement through May 2014. A few days before the expiration of the extension of the lease agreement, on May 27, 2014, Curren and his friend asked appellant if she had found another place to live or needed help moving out. Although it is clear from Curren's testimony that he expected appellant to move out, Curren did not testify he considered the extension of the lease term to have expired on that day. Likewise, despite Curren's intentions or request to appellant that she vacate, the evidence supports the conclusion that she continued living in his house through the time of the attack.

A Dallas County Sheriff's Department detective collected the physical evidence in this case and testified there was blood inside Curren's car in his garage. Curren testified the blood did not belong to him and that he had not gone in the garage during or after the assault. The record also contains photographs of Curren's car that showed it was full of belongings that Curren testified did not belong to him and were not in his car when he drove to his house on May 30, 2014. Among those belongings was a purse with blood on the outside of it and containing a wallet with appellant's social security card and driver's license. From this evidence, a reasonable jury could find appellant did not move her belongings out of Curren's house until after her assault of him.

A DeSoto police detective who interviewed appellant testified she told him the deadline for her to move out of Curren's house was May 31, 2014. From the foregoing evidence, a jury could reasonably find beyond a reasonable doubt that both Curren and appellant understood themselves to be members of the same household on the date of the assault. See Jackson, 443 U.S. at 318-19. We overrule appellant's first issue.

II. JURY ARGUMENT

In her second issue, Donnell contends the trial court erred by sustaining the State's objection to her closing arguments to the jury regarding her eligibility for parole. She argues her argument was proper discussion regarding the existence of the parole law and its legal effect on the sentencing process. Donnell asserts that the State's objection improperly sought to limit her argument, and thus the trial court's decision to sustain the State's objection denied her a fair trial.

A. Standard of Review & Applicable Law

We review rulings on objections to jury arguments for an abuse of discretion. Thompson v. State, 426 S.W.3d 206, 211 (Tex. App.-Houston [1st Dist.] 2012, pet. ref'd). Jury argument that misstates the law or that is contrary to the instructions of the jury charge is improper. Kuhn v. State, 393 S.W.3d 519, 540 (Tex. App.-Austin 2013, pet. ref'd). The code of criminal procedure requires a trial court to instruct the jury "not to consider the manner in which the parole law may be applied to . . . [the] defendant." TEX. CODE CRIM. PROC. ANN. art. 37.07 § 4(a) (West 2016).

B. Application of Law to Facts

Defense: Parole is different from probation. Parole is when you're now supervised after spending time in prison and you're released and you're being supervised in the community. In a case where the person is convicted of an aggravated felony the person has to do, complete in prison one-half of the time. So say for instance if given 10 years the person has to do 5 flat. Prosecutor: Your honor, I object to defense counsel arguing about the existence of the parole law. Defense: It's right here in the charge, Judge. Prosecutor: Anything other than that I object to. Trial Court: Sustained. Members of the jury, I think when you read the Court charge you will see it says that the jury is informed there is such a thing but you're to set whatever you think this case merits from all that you have seen and heard and not worry one way or another about whether parole would or wouldn't be granted, whether good time, it's all there.

The jury charge regarding punishment instructed the jury as follows:

You may consider the existence of the parole law and good conduct time. However, you are not to consider the extent to which good conduct time may be awarded to or forfeited by this particular defendant. You are not to consider the manner in which the parole law may be applied to this particular defendant.

The objected-to argument concerned the application of parole law contrary to both the jury charge and the code of criminal procedure. See CRIM. PROC. art. 37.07 § 4(a); Kuhn, 393 S.W.3d at 540. Accordingly, we conclude the trial court did not abuse its discretion in sustaining the State's objection. We overrule appellant's second issue.

III. MODIFICATION OF JUDGMENT

In a single cross-issue, the State requests that the judgment be reformed to include an affirmative finding of family violence.

The code of criminal procedure requires that if the trial court determines that the offense involved family violence, as defined by Section 71.004 of the family code, then the trial court shall make an affirmative finding of that fact and recite that finding in the judgment of the case. See TEX. CODE CRIM. PROC. ANN. art. 42.013 (West 2016). Section 71.004 defines "family violence" to include assault by one member of a household against another. See FAM. § 71.004(1) (West 2016).

The record reflects appellant was indicted with aggravated assault with a deadly weapon against a member of appellant's family and household, and the jury convicted appellant as charged in the indictment. Moreover, as discussed above, the evidence in the record supports the jury's finding that appellant was a member of Curren's household. While the judgment does include the words "family violence" in its description of the offense for which appellant was convicted, the second page of the judgment does not include an affirmative finding of family violence under the caption "Furthermore, the following special findings or orders apply."

On this record, we conclude that the trial court was statutorily obligated to include an affirmative finding of family violence in its judgment. See Butler v. State, 189 S.W.3d 299, 301 (Tex. Crim. App. 2006); see also TEX. CODE CRIM. PROC. ANN. art. 42.013; French v. State, 830 S.W.2d 607, 609 (Tex. Crim. App. 1992). We have the power to modify a judgment to make the record speak the truth when we have the necessary information before us to do so. See TEX. R. APP. P. 43.2(b); French, 830 S.W.2d at 609. Accordingly, we modify the trial court's judgment to include an affirmative finding of family violence under the caption "Furthermore, the following special findings or orders apply."

CONCLUSION

We affirm the trial court's judgment as modified.

JUDGMENT

Based on the Court's opinion of this date, the judgment of the trial court is MODIFIED to include an affirmative finding of family violence under the caption "Furthermore, the following special findings or orders apply."

As modified, the judgment is AFFIRMED.


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