Opinion issued December 5, 2013
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-12-00279-CR ——————————— JAMES HAROLD THOMAS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court Harris County, Texas Trial Court Case No. 1197921
MEMORANDUM OPINION
A jury convicted appellant James Harold Thomas of aggravated assault with
a deadly weapon. See TEX. PENAL CODE ANN. §§ 22.01(a), 22.02(a)(2) (West
2011). Thomas pleaded true to two enhancement allegations, and the trial court assessed punishment of 15 years in prison. On appeal, Thomas raises two issues,
arguing that the trial court erred by admitting evidence of two prior criminal
convictions during the guilt-or-innocence phase of trial and by failing to limit the
definition of “knowingly” in the jury charge to the pertinent conduct of the
underlying offense of aggravated assault.
Finding no harm sufficient to require a reversal, we affirm.
Background
Honey Gray was waiting for a bus with her young sons when she saw a man
she did not know cross the street. It was a weekday evening in January, and the
sun had already set. The man, identified at trial as appellant James Thomas,
walked behind Gray and her sons, spit on the ground, walked farther away, and
then stared at Gray and the boys, who boarded the bus. Near the back of the bus
was a machine that allows passengers to reload electronic fare cards. The boys
took a seat behind the machine while Gray reloaded her fare card. She then
walked to the front of the bus to pay the fare. As she returned to the rear of the
bus, she saw Thomas, who was sitting near her children, speaking to them. Gray
asked Thomas not to speak to her children, and he replied, “I know your kids.
They make fun and pick with me all the time.”
Gray was frightened by Thomas, and she instructed her sons to move to
another seat. She moved toward the back of the bus without threatening Thomas in
2 any way. A woman seated nearby stood up between them, raised her hands
defensively, and told Thomas to leave Gray and her children alone. Thomas
shoved the woman, who shoved him back, pushing him into a seat. Gray later
testified neither that woman nor anyone else moved toward Thomas or tried to hit
him after he fell into the seat. But Thomas got up and started to push the woman
again, as if “he wanted to fight.”
Thomas then opened his coat and removed a knife that Gray described as “a
homemade shank.” She screamed, “He has a knife.” As Thomas brandished the
knife in her direction, Gray grabbed the other woman’s coat “to pull her back.”
The bus driver observed through his rearview mirror that Thomas was wielding a
knife in a stabbing motion. At trial, Gray said that based on the way he wielded
the knife directly at her and the other woman, Thomas was trying to stab someone
and intended to do bodily harm. Gray did not realize she had been cut until she felt
something dripping down her face and heard her children screaming. She looked
into a mirror and saw a gash on her face.
The bus driver stopped the bus, and everyone got off. An ambulance arrived
and took Gray to the hospital. Thomas made no attempt to flee; rather, he
remained near the bus. Police arrived within minutes, and Metro Police
Department Officer J. Wiggins, who was first on the scene, asked who had the
knife. The passengers pointed to Thomas. Wiggins approached Thomas, patted
3 him down, and found a knife in his pocket. The officer placed Thomas under
arrest.
Metro Police Department Officer M. Stoneham arrived later. Stoneham
searched Thomas and put him in his patrol car. Wiggins gave Stoneham the knife.
At trial Gray testified that this knife was the one she saw Thomas use on the bus,
and Stoneham identified it as the knife that Wiggins gave him.
Stoneham testified that he had been trained to deal with mentally ill people.
He did not notice anything about Thomas’s behavior or appearance that warranted
mention in the offense report. Thomas was cooperative and did not blurt out any
remarks or statements. Gray testified similarly about Thomas’s demeanor, saying
that his speech was not slurred and he was not “talking gibberish.”
Thomas was charged with aggravated assault, but trial of his case was
delayed and reset several times due to concerns about his mental health, sanity, and
competency to stand trial. He was initially found incompetent to stand trial, and he
received treatment for his mental illness in two state hospitals. He was tried three
years after the offense, when he was determined to be competent to stand trial and
sane for the purposes of a criminal prosecution.
At trial, his counsel’s defensive theory was that Thomas was not guilty by
reason of insanity. The trial record shows numerous outbursts from Thomas, who
often blurted out that he was not insane. His counsel made a record of the
4 meandering and confusing notes that Thomas wrote to him during trial. Relying
primarily on the notes and letters he received before and during trial, counsel
argued that Thomas was incompetent to stand trial. The court denied his request to
admit Thomas’s mental-health medical records into evidence. However, in an
attempt to prove the insanity defense, Thomas’s attorney called as a witness Dr.
Laval, a psychologist who had examined him.
Dr. Laval testified that he had examined Thomas twice in 2011 to determine
his sanity. He met with Thomas for face-to-face interviews on two separate
occasions, and he reviewed various medical records, some of which indicated he
had been treated for mental illness as far back as the 1970s. Thomas’s records also
showed that he was treated at state hospitals for schizophrenia for more than a year
between his arrest and trial. Dr. Laval testified that schizophrenia is a chronic,
psychotic disorder, which is treatable but incurable. He explained the symptoms of
schizophrenia include paranoid thoughts, delusions, hallucinations, and tangential
thought process. He testified that a person having a schizophrenic delusion might
believe a person is trying to hurt him when in fact the person is not doing so.
However, when a person with schizophrenia is not experiencing a psychotic
episode, he may speak normally and have logical thought processes.
Dr. Laval testified about the nature of a sanity evaluation, which seeks to
determine “whether there was anything discussed in the offense report that would
5 obviously render this person illogical, insane, or psychotic at the time of the
alleged offense, or whether that is not included.” He testified that Thomas
informed him that he was homeless and not taking medication for his
schizophrenia in 2009 when he assaulted Gray on the bus. Dr. Laval surmised that
Thomas may have been experiencing some hallucinations at the time of the
offense. Dr. Laval concluded that at the time of the offense, Thomas was under the
influence of a psychotic episode, was suffering from a severe mental illness, and
may not have been able to control his impulses and conform his behaviors to the
requirements of law. Dr. Laval said that Thomas told him that Gray was bothering
him, he felt harassed, and he believed he was acting in self-defense.
Nevertheless, Dr. Laval concluded that Thomas’s severe mental illness did
not prevent him from understanding that his actions were wrong. Based on this,
Dr. Laval concluded that Thomas had schizophrenia but nevertheless was sane at
the time of the offense and during both of their interviews, in part because Thomas
attempted to justify his actions by claiming he acted in self-defense.
Thomas steadfastly expressed his belief that he was not insane at the time of
trial or at the time of the offense, and he chose to testify against the advice of his
counsel. Outside the presence of the jury, defense counsel objected to the State’s
intention to impeach Thomas with evidence of two prior convictions: a murder
conviction from 1980 and a misdemeanor conviction for unlawfully carrying a
6 weapon in 1998. The court did not immediately rule on these objections and stated
it would consider them depending on Thomas’s testimony.
Thomas testified that he was a 66-year-old military veteran. When asked if
he had been staying in the Harris County jail, he said, “Yes, sir. First time.” He
testified that he had been staying in a mental health clinic in the Harris County jail,
and he had received medication there to treat paranoid schizophrenia. Prior to the
offense and since he was “discharged from prison June 14, 2003,” he had been
living at the YMCA. He also said that he spent time at the public library where,
“They know me real good. I don’t cause no trouble.”
The account he gave of what happened on the day of the offense differed
from the account offered by Gray. Thomas admitted speaking to the children, and
he explained that he felt they were not being properly supervised and were in some
danger because they were playing too near the street. He said he got on the bus to
avoid the woman and her children, and once he was on the bus several people
attacked him, physically restraining and assaulting him and threatening to maim
him with a knife. He admitted to having and using a knife, but he said he did not
brandish it until after the people assailed him. He repeatedly asserted that he was
not the first aggressor. He admitted cutting a woman on the day in question, but he
did not recognize Gray as the woman he cut.
7 Thomas acknowledged that it would be wrong to threaten or cut someone
with a knife unless he felt threatened by another’s “use of deadly force.” He also
admitted that he intended to hurt the woman he cut with the knife. He said he was
emotionally distressed because he “had been hurt in the past.”
Before the State began cross-examination, the prosecutor approached the
bench and argued that the prior convictions were relevant. The State was
permitted to ask Thomas if he had been convicted of the two prior offenses, which
he admitted. When the State began questioning Thomas as to the facts of the
misdemeanor conviction, the court sustained Thomas’s objection and instructed the
jury to disregard the question and Thomas’s answer. The court denied Thomas’s
request for a mistrial.
The jury found Thomas guilty of aggravated assault. Thomas waived a jury
as to sentencing and pleaded true to two enhancements alleged by the State. The
court assessed his punishment at 15 years in prison, and Thomas appealed.
Analysis
I. Admission of evidence of extraneous offenses
In his first issue, Thomas argues that the trial court erred by allowing the
State to cross-examine him during the guilt-or-innocence phase of trial about two
prior criminal convictions. We review a trial court’s admission of extraneous
offense evidence under an abuse of discretion standard. De La Paz v. State, 279
8 S.W.3d 336, 343 (Tex. Crim. App. 2009). “As long as the trial court’s ruling is
within the ‘zone of reasonable disagreement,’ there is no abuse of discretion, and
the trial court’s ruling will be upheld.” Id. at 343–44 (quoting Montgomery v.
State, 810 S.W.2d 372, 391 (Tex. Crim. App. 1990)).
Outside the presence of the jury, Thomas informed the court that he wished
to testify, despite his attorney’s advice to remain silent. The State informed the
court that it wished to impeach Thomas regarding a prior murder conviction and a
prior misdemeanor conviction for unlawfully carrying a weapon. Thomas objected
on the grounds that the 1980 murder conviction was too remote to be admissible.
See TEX. R. EVID. 609(b). Moreover, he argued that admission of the murder
conviction would be highly prejudicial and would improperly influence the jury to
make its decision on an emotional, rather than evidentiary, basis. See TEX. R.
EVID. 403. With respect to the State’s use of the 1998 misdemeanor conviction of
unlawfully carrying a weapon, Thomas argued that it was inadmissible for
impeachment purposes because it was neither a felony nor a crime of moral
turpitude. See TEX. R. EVID. 609(a). The court did not rule on the objections at
that time but said that it would consider the objections and apply the Rule 403
“balancing test” after hearing Thomas’s testimony.
When a defendant testifies at trial, he is subject to cross examination in the
same manner as any other witness. Bowley v. State, 310 S.W.3d 431, 434 (Tex.
9 Crim. App. 2010). Rule 609 of the Texas Rules of Evidence provides that
evidence of a witness’s prior conviction of a felony or crime of moral turpitude
shall be admitted for purposes of impeachment if the court determines that the
probative value of admitting the conviction outweighs its prejudicial effect. TEX.
R. EVID. 609(a); Morris v. State, 67 S.W.3d 257, 263 (Tex. App.—Houston [1st
Dist.] 2001, pet. ref’d). The court must balance probative value and prejudice by
considering (1) the prior conviction’s impeachment value; (2) its temporal
proximity to the crime on trial, and the defendant’s subsequent criminal history; (3)
the similarity between the prior offense and the present offense; (4) the importance
of the defendant’s testimony; and (5) the importance of the credibility issue. Theus
v. State, 845 S.W.2d 874, 880 (Tex. Crim. App. 1992); see Hernandez v. State, 976
S.W.2d 753, 755 (Tex. App.—Houston [1st Dist.]), pet. ref’d, 980 S.W.2d 652
(Tex. Crim. App. 1998). However, when the conviction is more than 10 years old,
Rule 609(b) requires the court to conduct a different analysis. Hernandez, 976
S.W.2d at 755. In such a situation, before a court may admit such evidence, it
must determine that “the probative value of the conviction supported by specific
facts and circumstances substantially outweighs its prejudicial effect.” TEX. R.
EVID. 609(b). This ten-year period is measured from the date of trial in which the
prior conviction is to be offered as evidence, rather than the date of the charged
offense, because the evidence is relevant under Rule 609, if at all, to show whether
10 the defendant is credible at trial. See Davis v. State, 545 S.W.2d 147, 150 (Tex.
Crim. App. 1976).
As to the murder conviction, Thomas argues that more than 10 years had
passed from both the date of conviction and the end of his confinement because he
was sentenced to 20 years in prison in 1980, and his trial was in 2012. He
therefore contends that the murder conviction should have been evaluated under
Rule 609(b) and that its probative value had to substantially outweigh its
prejudicial effect. However, at trial Thomas testified that he was released from
prison in 2003, and at a pretrial hearing he informed the court that he did 30 years
“in and out” on his murder charge. The State concedes that more than 10 years had
passed since Thomas’s murder conviction, but it argues that if Thomas had been
released on parole and had such parole revoked, it is possible that his confinement
could have extended into 2002, bringing the murder conviction within Rule
609(b)’s 10-year time limit. The State further argues that the Theus factors weigh
in favor of admission of the murder conviction, pursuant to Rule 609(a).
We ultimately need not determine the evidentiary issue presented under Rule
609, because even if the court erred by admitting evidence of Thomas’s murder
conviction, we conclude that the admission of the evidence was not harmful in the
circumstances of this case.
11 The erroneous admission of evidence is subject to a harm analysis under
Rule 44.2(b) of the Texas Rules of Appellate Procedure. Jabari v. State, 273
S.W.3d 745, 754 (Tex. App.—Houston [1st Dist.] 2008, no pet.). Under Rule
44.2, we disregard any non-constitutional error, defect, irregularity, or variance
that does not affect substantial rights. TEX. R. APP. P. 44.2(b); Jabari, 273 S.W.3d
at 754. A substantial right is affected when the error had a substantial and
injurious effect or influence in determining the jury’s verdict. Morales v. State, 32
S.W.3d 862, 867 (Tex. Crim. App. 2000). In assessing whether the error had a
substantial and injurious effect on the jury’s verdict, the court of appeals must
consider the entire record, including overwhelming evidence of guilt, whether the
State emphasized the error, defensive theories, jury instructions, and closing
arguments. See Motilla v. State, 78 S.W.3d 352, 355–56 (Tex. Crim. App. 2002).
An appellate court should not overturn a criminal conviction for non-constitutional
error if the court, after examining the record as a whole, has fair assurance that the
error did not influence the jury or had only a slight effect. See Morales, 32 S.W.3d
at 867.
In this case, there was overwhelming evidence of Thomas’s guilt. Gray
testified that Thomas assaulted her with a knife on the bus. She identified Thomas
in open court, and she identified the knife. The jury not only saw photographs of
Gray’s injury, but they also had the opportunity to see the permanent scar on her
12 face when she testified. The driver of the bus testified that he saw Thomas
swinging the knife. Officer Wiggins testified that when he asked the passengers
who had the knife, they pointed to Thomas. He then found the knife on Thomas’s
body when he conducted a pat-down search.
Thomas had two defensive theories at trial—one advanced by his attorney
and one advanced through his testimony—but neither theory denied that he
committed the alleged act. His attorney’s theory was that Thomas was not guilty
by reason of insanity, that is, he did cut Gray’s face but he lacked the requisite
culpable mental state because of his insanity. Thomas testified that he was not
guilty because he acted in self-defense, that is, he did cut a woman’s face but his
actions were excused because the people on the bus allegedly attacked him first.
In its charge, the court instructed the jury to consider Thomas’s prior
convictions, if at all, only for the purpose of impeaching his credibility, and not for
any other purpose. The court also expressly instructed the jury that the evidence of
prior convictions “cannot be considered by you against the defendant as any
evidence of guilt in this case.” Introduction of the fact of Thomas’s prior murder
conviction undoubtedly had a prejudicial effect. See Lott v. State, 123 Tex. Crim.
591, 596, 60 S.W.2d 223, 225 (1933) (“[T]he frailties of human nature are such
that it is expecting much of a jury if they can disabuse their mind of the fact that
they are again trying one who has theretofore been convicted or charged with
13 crime.”). However, we must presume that the jury followed the court’s
instructions, and we thus presume that the jury did not consider Thomas’s prior
conviction as evidence that he was guilty of committing the aggravated assault of
Gray. See Colburn v. State, 966 S.W.2d 511, 520 (Tex. Crim. App. 1998); Jones v.
State, 264 S.W.3d 26, 29 (Tex. App.—Houston [1st Dist.] 2007, pet. ref’d).
Finally, we note that even though Thomas volunteered the testimony that he
was released from prison in 2003 before the State introduced evidence of his prior
felony conviction, the murder conviction was not emphasized at trial. The State
asked only a single question about the conviction and did not mention it at all in
closing arguments. Considering the record as a whole, we conclude that the
admission of evidence of Thomas’s prior murder conviction did not affect his
substantial rights and was not reversible error. See TEX. R. APP. P. 44.2(b).
As to the misdemeanor conviction for unlawfully carrying a weapon, the
State argued to the court that it was not being offered to Thomas’s credibility, see
TEX. R. EVID. 609, or as character conformity evidence, but as a “signature crime”
because it showed a pattern of Thomas brandishing weapons when he is angry, see
TEX. R. EVID. 404(b). Among other things, the State also argued that because
Thomas testified that he did not know his conduct was wrong, the evidence of the
conviction was relevant and necessary to show to his knowledge of the
wrongfulness of his conduct. Thomas reurged his Rule 403 objection to this
14 evidence. The court ruled that evidence of the prior conviction for unlawfully
carrying a weapon would be admissible, however the court cautioned the State that
its ruling was “very limited” and the evidence could not be used as character
conformity evidence. We agree with Thomas that this misdemeanor conviction
could not have been properly admitted under Rule 609 because it was neither a
felony nor a crime of moral turpitude. See TEX. PENAL CODE ANN. § 46.02 (West
2011) (offense of unlawful carrying of weapons is Class A misdemeanor unless it
is committed on any premises license or issued a permit for the sale of alcoholic
beverages); Thomas v. State, 482 S.W.2d 218, 219 (Tex. Crim. App. 1972)
(misdemeanor offense of unlawfully carrying arms is not an offense involving
moral turpitude). But this is not the basis upon which the State defends the
admissibility of the evidence.
The State offered the misdemeanor unlawful-carrying conviction as
evidence that Thomas knew his conduct was wrong. Rule 404 prohibits the
admission of evidence of “other crimes, wrongs, or acts . . . in order to show action
in conformity therewith.” TEX. R. EVID. 404(b). But such evidence “may be
admissible” for other purposes, such as proof of motive, opportunity, intent,
preparation, plan, knowledge, identity, or absence of mistake or accident.” Id.
Thomas’s prior conviction for unlawfully carrying a weapon was relevant to the
disputed fact issue concerning his knowledge that his behavior was wrong. His
15 defensive theory of insanity relied nearly entirely on the contention that he did not
know that his use of a knife on the bus that day was wrong. But his prior
conviction for unlawfully carrying a weapon had some tendency to show his
knowledge of the wrongfulness of his actions because he had previously been in
trouble with the law in a similar circumstance. See TEX. R. EVID. 401 (defining
relevant evidence).
Thomas also objected to the admission of this evidence under Rule 403,
arguing that it was highly prejudicial. In conducting a balancing test under Rule
403, a court considers (1) the testimony’s inherent probative value, (2) its potential
to impress the jury in some irrational but indelible way, (3) the amount of trial time
the proponent needs to develop such testimony, and (4) the proponent’s need for
the testimony. Montgomery v. State, 810 S.W.2d 372, 389–90 (Tex. Crim. App.
1990); see Herrera v. State, 11 S.W.3d 412, 417 (Tex. App.—Houston [1st Dist.]
2000, pet. ref’d). There is a presumption that relevant evidence is more probative
than prejudicial. Santellan v. State, 939 S.W.2d 155, 169 (Tex. Crim. App. 1997);
see Herrera, 11 S.W.3d at 417. Here, as we have explained, the evidence was
relevant to rebutting Thomas’s defensive theory of insanity. Though the evidence
may have had some prejudicial influence because it shows that Thomas had
previously committed a crime, the court instructed the jury not to consider that as
evidence that he was guilty of the charged offense, and we presume the jury
16 followed the court’s instructions. See Colburn, 966 S.W.2d at 520. The State did
not dwell on this evidence: it asked two questions, one of which the jury was
instructed to disregard. Finally, as we have explained, this evidence was necessary
to rebut Thomas’s defensive theory of insanity. We hold that the trial court did not
err by admitting this evidence. Even if the admission of this evidence were error, it
would be harmless for the same reasons the admission of evidence of Thomas’s
murder conviction was harmless.
We overrule the issue challenging the admission of evidence of Thomas’s
prior convictions.
II. Charge error
In his second issue, Thomas argues that the trial court erred by overruling
his objection to the language in the charge defining “knowingly” in regard to a
person’s conduct. The jury charge included the following general instructions and
definitions regarding intent and knowledge:
A person acts intentionally, or with intent, with respect to a result of his conduct when it is his conscious objective or desire to cause the result.
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 with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
The charge also included the following application paragraph: 17 Now, if you find from the evidence beyond a reasonable doubt that on or about the 6th day of January, 2009, in Harris County, Texas, the defendant, James Harold Thomas, did then and there unlawfully, intentionally or knowingly cause bodily injury to Hon[e]y Gray by using a deadly weapon, namely a knife, then you will find the defendant guilty of aggravated assault, as charged in the indictment.
At the charge conference, Thomas objected to providing a definition of
“knowingly” as related to the “nature” of his conduct, arguing that aggravated
assault is a result-oriented offense and the instruction was therefore irrelevant to
the case. In response, the State argued that it was a proper definition, and the court
overruled the objection and denied the request to remove that sentence from the
charge. Thomas also noted for the record that he had no objection to the
instruction about “intent” with respect to the “result” of his conduct. On appeal,
the State concedes that the charge erroneously stated, “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.” See Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App.
1994) (“It is error for a trial judge to not limit the definitions of the culpable mental
states as they relate to the conduct elements involved in the particular offense.”).
Rule 44.2 does not apply to jury-charge error. See Olivas v. State, 202
S.W.3d 137, 145 (Tex. Crim. App. 2006). The appropriate standard for all errors
in the jury charge, statutory or constitutional, is that set out in Almanza v. State,
686 S.W.2d 157 (Tex. Crim. App. 1984). Id. When charge error has been 18 properly preserved, reversal is required if the charge error resulted in “some” or
“any” actual harm to the defendant. O’Brien v. State, 89 S.W.3d 753, 756 (Tex.
App.—Houston [1st Dist.] 2002, pet. ref’d) (citing Arline v. State, 721 S.W.2d 348,
351 (Tex. Crim. App. 1986), and Almanza, 686 S.W.2d at 171); see Hill v. State,
265 S.W.3d 539, 543 (Tex. App.—Houston [1st Dist.] 2008, pet. ref’d). “The
four-part analysis for assessing harm consists of reviewing (1) the entire jury
charge; (2) the state of the evidence, including the contested issues and weight of
probative evidence; (3) the arguments of counsel; and (4) any other relevant
information revealed by the record of the trial as a whole.” Hill, 265 S.W.3d at
543.
Considering the jury charge as a whole, we note that the charge correctly
defined “intent” in terms of the result of the actor’s conduct, and Thomas
specifically noted on the record at trial that he had no objection to this definition of
an alternative culpable mental state. As to the state of the evidence, we have
already explained how the overwhelming weight of the evidence and defensive
theories rendered the alleged evidentiary errors harmless. Similarly, the same
considerations militate in favor of a determination that the charge error did not
cause Thomas any actual harm. In addition, we note that Thomas testified that he
intended to harm Gray when he struck at her with a knife.
19 Finally, both Thomas’s counsel and the State emphasized the results-
oriented nature of the alleged offense in closing arguments. Defense counsel
argued that the State had to prove that Thomas intended to hurt Gray. The State
argued that it had proved that Thomas meant to cut Gray.
Considering the record as a whole and the relevant factors, we conclude that
the alleged jury-charge error was harmless. We overrule this issue.
Conclusion
We affirm the judgment of the trial court.
Michael Massengale Justice
Panel consists of Justices Jennings, Bland, and Massengale.
Do not publish. TEX. R. APP. P. 47.2(b).