Gary Vise v. State

Opinion

Fourth Court of Appeals San Antonio, Texas MEMORANDUM OPINION No. 04-14-00077-CR

Gary VISE, Appellant

v.

The STATE of Texas, Appellee

From the 186th Judicial District Court, Bexar County, Texas Trial Court No. 2012-CR-9391 Honorable Maria Teresa Herr, Judge Presiding

Opinion by: Marialyn Barnard, Justice

Sitting: Sandee Bryan Marion, Chief Justice Marialyn Barnard, Justice Luz Elena D. Chapa, Justice

Delivered and Filed: February 11, 2015

AFFIRMED

A jury found appellant Gary Vise guilty of the offense of assault–family violence by

strangulation. Based on the jury’s recommendation, the trial court sentenced Vise to three years’

confinement, but probated the sentence and placed Vise on community supervision for three years.

On appeal, Vise contends: (1) the evidence is insufficient to support his conviction; (2) the trial

court erred by instructing the jury on the doctrine of provocation because the evidence is

insufficient to support it; and (3) he is entitled to a new trial because portions of the reporter’s

record are missing. We affirm. 04-14-00077-CR

BACKGROUND

Vise was indicted for assault–family violence by choking or strangulation on November

14, 2012. At trial, Officer Hale Poloa testified he responded to a family disturbance call that led

him to the home of Vise and Donna Cherry. Officer Poloa stated that when he arrived, Vise was

standing in the front yard. The officer placed Vise in handcuffs to detain him. Shortly thereafter,

Sergeant Gilberto Martinez arrived. At trial, Sergeant Martinez testified he spoke to Cherry and

observed redness on her neck as if someone grabbed it and held it long enough to leave a skin

burn. He testified that after he observed Cherry’s injuries, an EMT technician, Colin Culp, from

the Converse Fire Department examined Cherry. According to Culp, Cherry’s throat did not

sustain any permanent injury, but there were red marks on her neck. Culp testified he advised

Cherry to seek medical attention if she continued to have breathing problems.

Cherry testified she and Vise were living together as boyfriend and girlfriend. One

evening, after doing yard work all day, they, along with her son, sat down together for dinner.

Cherry testified Vise seemed moody and snapped at her son after he spilled milk during dinner.

Cherry testified that after dinner, she cleared the table and took her son to the spare room to watch

movies. Cherry stated she and Vise began drinking alcohol, but she stopped after sensing tension

from Vise. She testified she repeatedly asked him what was wrong, but her questions seemed to

make him more agitated. At that point, Cherry checked on her son and told him to turn up the

volume and not to open the door for anyone except her or the police.

According to Cherry, when she returned from checking on her son, Vise was outside the

house. She went outside and asked him why he was upset. Cherry testified their discussion

became heated and she felt threatened by Vise. She stated she told Vise to stop threatening her

and then “popped” a glass bottle at him. The bottle broke against his chest, and Vise reacted by

throwing his beer bottle on the ground, lifting Cherry up by her arms, and throwing her to the -2- 04-14-00077-CR

ground. Cherry stated that once she was on the ground, Vise “straddled” her and placed his hands

around her throat. Cherry testified Vise applied pressure to her neck and made it “a little bit”

difficult to breathe. Unable to move, she screamed but was unable to achieve full volume because

Vise’s hands were around her throat. At that moment, a neighbor’s back light came on, and Vise

released Cherry. Cherry testified he left the house and she called a friend and 911.

At the close of trial, defense counsel requested an instruction on self-defense, and the State

requested an instruction on provocation. The trial court granted both requests. Ultimately, a jury

found Vise guilty of the felony offense of assault–family violence by strangulation. Vise was

sentenced to three years’ confinement, probated. Thereafter, Vise perfected this appeal.

ANALYSIS

As noted above, Vise raises three complaints on appeal. First, he contends the evidence is

insufficient to support his conviction. He also asserts the trial court erred when it instructed the

jury on the doctrine of provocation because according to Vise, the evidence is insufficient to

support a provocation instruction. Finally, Vise claims he is entitled to a new trial because portions

of the reporter’s record are missing.

Legal Sufficiency

In his first issue, Vise claims the evidence is insufficient to prove he committed the offense

of assault–family violence by strangulation. Specifically, Vise argues Cherry’s testimony

regarding her ability to breathe, combined with her admission that she could scream for help,

rendered the evidence insufficient to prove her normal breathing or blood circulation was impeded

during their confrontation.

Standard of Review

In reviewing a challenge to the sufficiency of the evidence to support a criminal conviction,

we use the standard set out by the Supreme Court in Jackson v. Virginia. Brooks v. State, 323 -3- 04-14-00077-CR

S.W.3d 893, 912 (Tex. Crim. App. 2010) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979));

Mayberry v. State, 351 S.W.3d 507, 509 (Tex. App.—San Antonio 2011, pet. ref’d). Under this

standard, we examine all the evidence in the light most favorable to the verdict to determine

whether any rational jury could have found the essential elements of the offense beyond a

reasonable doubt. Orellana v. State, 381 S.W.3d 645, 652–53 (Tex. App.—San Antonio 2012,

pet. ref’d) (quoting Mayberry, 351 S.W.3d at 509). Under this standard, the jury maintains full

responsibility of resolving conflicts in the testimony, weighing the evidence, and drawing

reasonable inferences from basic facts to ultimate facts. Orellana, 381 S.W.3d at 653 (quoting

Jackson, 443 U.S. at 319).

Accordingly, we must defer to the jury’s weighing of the evidence, resolution of conflicts

in the testimony, and assessment of credibility. Brooks, 323 S.W.3d at 899; Orellana, 381 S.W.3d

at 653 (citing Jackson, 443 U.S. at 319). We must resolve any inconsistencies in favor of the

verdict. Gonzales v. State, 330 S.W.3d 691, 694 (Tex. App.—San Antonio 2010, no pet.) (citing

Curry v. State, 30 S.W.3d 394, 406 (Tex. Crim. App. 2000)). We must also remain mindful that

we cannot reweigh the evidence or substitute our judgment for that of the jury. Orellana, 381

S.W.3d at 653 (citing King v. State, 29 S.W.3d 556, 562 (Tex. Crim. App. 2000)). The jury is the

exclusive judge of the credibility of witnesses and the weight to be given to their testimony, and

the jury may accept or reject all or any portion of a witness’s testimony. Orellana, 381 S.W.3d at

653 (citing Lancon v. State, 253 S.W.3d 699, 707 (Tex. Crim. App. 2008)).

Application

As noted, the jury convicted Vise of the felony offense of assault–family violence by

strangulation. To obtain a conviction for this offense, the State must prove beyond a reasonable

doubt that the accused “intentionally, knowingly, or recklessly caused bodily injury . . . by

intentionally, knowingly, or recklessly impeding the normal breathing or circulation of the blood -4- 04-14-00077-CR

of the person by applying pressure to the person’s throat or neck or by blocking the person’s nose

or mouth.” TEX. PENAL CODE ANN. § 22.01(b)(2)(B) (West 2011) (emphasis added). The verb

“impede” is not defined in the Penal Code, and therefore, we must determine its plain meaning

under the statute. Clinton v. State, 354 S.W.3d 795, 800 (Tex. Crim. App. 2011) (“When analyzing

the sufficiency of the evidence, undefined statutory terms ‘are to be understood as ordinary usage

allows, and jurors may thus freely read statutory language to have any meaning which is acceptable

in common parlance.’”); see Shipp v. State, 331 S.W.3d 433, 441 (Tex. Crim. App. 2011). When

determining the meaning of an undefined term in a statute, we may consult standard dictionaries.

Clinton, 354 S.W.3d at 800.

The verb impede suggests performing an act that interferes with or hinders something. See

MERRIAM-WEBSTER’S COLLEGIATE DICTIONARY 623 (11th ed. 2003). When used in this context,

the verb impede suggests applying pressure to a person’s throat or neck or blocking a person’s

nose or mouth to such an extent it interferes or hinders his or her ability to breathe or circulate

blood normally. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B). Now, we must look to the evidence

to see whether any rational jury could have found Vise applied pressure to Cherry’s throat such

that he interfered with or hindered her ability to breathe normally. See Orellana, 381 S.W.3d at

652–53.

According to Vise, the evidence is insufficient to prove he impeded Cherry’s ability to

breathe normally because she testified she had little difficulty breathing and could scream loud

enough to call for help. Vise’s argument, however, implies Cherry’s breathing had to be

completely cut off for it to be “impeded” under the statute. We disagree based on the plain meaning

of the term. The statute does not require a victim to be completely unable to breathe. Rather, a

victim’s breath or blood circulation need only be hindered or interfered with. Here, Cherry

testified both of Vise’s hands were applying pressure around her neck, and it was “a little bit” -5- 04-14-00077-CR

difficult for her to breathe and she could not scream fully because “his hands were impeding that

process.” On cross examination, Cherry added that Vise wrapped his hands around her neck long

enough to hurt her. Accordingly, we hold Cherry’s testimony is some evidence that the pressure

applied by Vise to her throat interfered with or hindered her normal breathing.

In addition to Cherry’s testimony, the jury heard testimony from Culp, the EMT technician,

who testified Cherry exhibited redness around her throat. Moreover, Sergeant Martinez testified

the front of Cherry’s neck was red and you could tell someone grabbed her and held her neck long

enough to leave a skin burn. Accordingly, we hold a rational jury could reasonably infer Vise

applied enough pressure to make it difficult for Cherry to breathe normally. When viewed in the

light most favorable to the verdict, we hold the cumulative force of all the evidence is sufficient to

support the conviction.

Jury Charge

In his next issue on appeal, Vise contends the trial court reversibly erred by instructing the

jury on the doctrine of provocation. According to Vise, the evidence is insufficient to support the

instruction because there was no evidence Vise did any act or used any words that provoked an

attack by Cherry.

We follow a two-step process when analyzing jury charge issues on appeal. Ngo v. State,

175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Cornett v. State, 405 S.W.3d 752, 757 (Tex. App.—

Houston [1st Dist.] 2013, pet. ref’d.). First, we must determine whether error exists, and second,

if we determine error exists, then we must determine whether the error caused sufficient harm to

warrant a reversal. Ngo, 175 S.W.3d at 743; Cornett, 405 S.W.3d at 757. The amount of harm

necessary to warrant a reversal depends on whether the appellant objected to the jury charge. Ngo,

175 S.W.3d at 743 (“Preservation of charge error does not become an issue until we assess harm.”). -6- 04-14-00077-CR

Under the well-recognized Almanza standard, if the appellant objected to the complained of

portion of the jury charge, then he need only show he suffered some harm as a result of the error

to obtain a reversal. Ngo, 175 S.W.3d at 743 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984)). On the other hand, if the appellant failed to object to the complained of portion

of the charge, then he must show he suffered egregious harm to be entitled to a reversal. Id.

Accordingly, we will first address whether any error in the charge existed.

A jury instruction on the doctrine of provocation restricts a defendant’s right to claim self-

defense. 1 Smith v. State, 965 S.W.2d 509, 512 (Tex. Crim. App. 1998); Kennedy v. State, 193

S.W.3d 645, 654 (Tex. App.—Fort Worth 2006, pet. ref’d.). The instruction is required when: (1)

the evidence is sufficient to show the defendant performed some act or said some words that

provoked the attack on him, (2) the act or words were reasonably calculated to provoke the attack,

and (3) the act was performed or the words were said for the purpose and with the intent that the

defendant would have a pretext for inflicting harm on the other person. Smith, 965 S.W.2d at 513;

Harrod v. State, 203 S.W.3d 622, 628 (Tex. App.—Dallas 2006, no pet.). Each of these required

elements are questions of fact and may be proved by circumstantial evidence. Smith, 965 S.W.2d

at 513; Harrod, 203 S.W.3d at 628; Fink v. State, 97 S.W.3d 739, 742 (Tex. App.—Austin 2003,

pet. ref’d.). Under this analysis, we must determine whether, viewing the evidence in the light

most favorable to giving the instruction, there was sufficient evidence from which a rational jury

could have found each element of provocation beyond a reasonable doubt. Smith, 965 S.W.2d at

514; Harrod, 203 S.W.3d at 628; Fink, 97 S.W.3d at 742.

1 However, in this case, the trial court made a Solomon-like decision, giving the jury both a provocation and a self- defense instruction.

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Here, Cherry testified Vise was irritable throughout dinner and appeared to become more

upset after she asked him what was wrong. She testified that when she went outside to talk to

Vise, he said something about her or her son that she could not remember, but it made her feel

threatened. Cherry testified he also told her if she hit him like a man, then he would hit her back

like one. Cherry stated that at that point, she “popped” a bottle at him. Based on this evidence,

we hold the first element of the provocation doctrine is met. The evidence establishes Cherry felt

threatened by Vise’s irritability and Vise used words that Cherry found threatening and ultimately

caused her to attack him. Cherry’s testimony permits a jury to infer beyond a reasonable doubt

that Cherry threw a bottle at Vise after he goaded her with words.

With regard to the second element of the provocation doctrine, Vise’s words were leveled

directly at Cherry and her son, and we hold a rational jury could find that such words were

reasonably calculated to provoke Cherry. See Smith, 965 S.W.2d at 514 (highlighting acts or words

directed at victim or third party can be found to provoke difficulty). Although Vise highlights the

fact that Cherry did not remember everything that was said verbatim, the evidence is not required

to establish exactly what words or act caused the provocation. Rather, the jury must merely be

able to find that some provoking words or act exist. Id. at 515.

Finally, a rational jury could find that Vise’s threat to hit Cherry like a man if she hit him

first was said as a pretext to allow Vise to harm Cherry, thereby establishing intent. Id. at 513.

Intent is a question of fact that can be determined from circumstantial evidence, and the jury could

have found beyond a reasonable double that Vise’s words were purposely used to provoke an

attack by Cherry, giving him an excuse to attack her. See id. at 517.

Based on the foregoing evidence, we hold the evidence is sufficient to show Vise provoked

the attack by Cherry, his acts or words were reasonably calculated to provoke the attack, and he

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did what he did and said what he said with the intent that she attack him so he would have a pretext

for inflicting harm on her. Id. at 513.

Because sufficient evidence exists on each element of provocation, we hold the trial court

did not err by giving the provocation instruction. Accordingly, we need not conduct a harm

analysis. We overrule this issue.

Reporter’s Record Missing

Finally, Vise asserts he is entitled to a new trial because a portion of the reporter’s record

is missing. Vise argues the missing portion of the record is significant and necessary to his appeal

because that part of the record may contain an objection to the jury charge. Vise points out that

whether an objection to the jury charge on provocation was made is important to this appeal

because it determines what type of harm analysis must be applied.

Under Rule 34.6(f) of the Texas Rules of Appellate Procedure, an appellant is entitled to a

new trial if: (1) he timely requested a reporter’s record; (2) a significant exhibit or portion of the

court reporter’s notes and records have been lost or destroyed through no fault of his own; (3) the

missing portion of the reporter’s record or exhibit is necessary to the resolution of the appeal; and

(4) the missing portion of the reporter’s record or exhibit cannot be replaced by agreement of the

parties. TEX. R. APP. P. 34.6(f); Routier v. State, 112 S.W.3d 554, 570 (Tex. Crim. App. 2003).

To determine whether the rule’s requirements are met, we must view the circumstances from the

appellant’s point of view and resolve any reasonable doubt in favor of the appellant. Routier, 112

S.W.3d at 570.

Here, the record reflects the trial court excused the jury for lunch and then heard arguments

regarding the self-defense charge, which were transcribed. The court then adjourned for lunch, -9- 04-14-00077-CR

and when it reconvened, the trial court stated the evidence raised both a provocation and self-

defense issue. The trial court advised the parties they could argue if they wished, but it had

reviewed the law and made a decision. The trial court then asked if there was anything else the

parties wanted to raise before the jury was seated. When the trial court confirmed no other issues

regarding the charge were going to be raised, the court reporter interjected, stating, “Judge, just,

their arguments for the charge were on the record and I didn’t get –.” The trial judge then stated,

“What I’m saying is I’m granting the request for the self-defense charge and I’m granting the

State’s request for the provoking the difficulty charge. And is there anything else we need to take

up before I seat the jury?” Neither side objected.

After reviewing the record, we hold that if any part of the reporter’s record is lost or

destroyed, it was not without the fault of Vise’s counsel. Here, the record reflects the arguments

regarding the self-defense charge were transcribed, but the arguments regarding the doctrine of

provocation were not. When the court reporter informed the trial court and the parties that she was

unable to transcribe all of the arguments, the trial court gave both parties an opportunity to put any

missing argument on the record. Instead of restating the argument or repeating an objection, Vise’s

counsel did not put the complained of missing information on the record. In fact, Vise was given

several opportunities to confirm any objection made to the jury charge was on the record; first,

when the court reporter told the trial judge she missed some information before the proceedings

continued, and again, when the trial judge asked for any objections before the charge was

submitted to the jury. Accordingly, Vise failed to show how the reporter’s record was lost through

no fault of his own.

Furthermore, the missing portion of the reporter’s record is not necessary to the resolution

of the appeal because whether an objection to the provocation charge was made is irrelevant. Vise

argues the missing portion of the record could have contained an objection to the jury charge and - 10 - 04-14-00077-CR

whether an objection was made is significant because it determines what type of harm analysis to

apply when determining whether the trial court correctly instructed the jury. However, as stated

above, we need not conduct a harm analysis because the trial court did not err when instructing the

jury on the doctrine of provocation. Therefore, determining what type of harm analysis to apply

is irrelevant. Accordingly, we overrule Vise’s last issue on appeal.

CONCLUSION

Based on the foregoing, we overrule Vise’s issues and affirm the trial court’s judgment.

Marialyn Barnard, Justice

Do Not Publish

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