Shugart v. State

32 S.W.3d 355, 2000 Tex. App. LEXIS 7271, 2000 WL 1597841

• Court: Court of Appeals of Texas
• Decided: October 25, 2000
• Docket: 10-98-206-CR
• Status: Published

Opinions

OPINION

VANCE, Justice.

Shawn Shugart was charged with two counts of aggravated assault with a deadly weapon and one count of possession of a deadly weapon in a penal institution. See Tex.Pen.Code Ann. §§ 22.02, 46.10 (Vernon 1994). The case was tried to a jury, which made no finding on count one, a finding of “not guilty” on count two, and a “guilty” finding on count three. Shugart did not elect to have the jury assess punishment. The Court sentenced him to ten years’ imprisonment. He appeals, asserting four issues for review. His first two claims assert that the evidence is legally and factually insufficient to sustain a verdict for possession of a deadly weapon in a penal institution because the evidence shows that the injuries inflicted were superficial, there were no threats or other assertive conduct accompanying the use of the weapon, and there was no testimony that the weapon was designed for the purpose of inflicting serious bodily injury or death. His third and fourth issues assert that the court erred in excluding testimony concerning the contents of a letter written by Shugart and by refusing to submit an instruction on the defense of necessity. We will affirm the judgment.

FACTS

Shugart maintained a relationship with a co-inmate, Reynaldo Delarosa. While in the “day room,” Shugart approached Dela-rosa, and an argument erupted. Delarosa walked away, but Shugart approached him again and slapped him. Shugart then stabbed Delarosa with a homemade weapon. The weapon was described as a metal rod, approximately four inches in length, sharpened to a point on one end with a cloth wrapped around the other end. Another inmate, Ricky Sessions, attempted to intervene, and Shugart struck him with the weapon as well. Delarosa and Sessions were both treated for minor injuries. Delarosa’s injuries were to his chest, and Sessions’ injuries were to his ear and chest. Although the injuries were not life threatening, the nurses who treated Sessions and Delarosa testified that such a weapon could cause serious bodily injury.

SUFFICIENCY OF THE EVIDENCE

In his first two issues, Shugart asserts that the evidence is legally and factually insufficient to establish that the weapon possessed was a “deadly weapon,” where there is no evidence the weapon was designed to inflict death or serious bodily injury, and the injuries actually inflicted were not serious.

Legal Sufficiency Standard

In determining whether the evidence is legally sufficient to support the verdict, we view the evidence in the light most favorable to the verdict, asking whether any rational trier of fact could have found the essential elements of the crime beyond a reasonable doubt. Weightman v. State, 975 S.W.2d 621, 624 (Tex.Crim.App.1998); Lane v. State, 933 S.W.2d 504, 507 (Tex.Crim.App.1996) (citing Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S.Ct. 2781, 2788-89, 61 L.Ed.2d 560 (1979)); Westfall v. State, 970 S.W.2d 590, 595 (Tex.App. — Waco 1998, pet. ref'd).

Factual Sufficiency Standard

In conducting a factual-sufficiency review, we must ask whether a neutral review of all the evidence, both for and against the finding, demonstrates that the proof of guilt is so obviously weak as to undermine confidence in the jury’s determination, or the proof of guilt, although adequate if taken alone, is greatly outweighed by contrary proof. Johnson v. State, 23 S.W.3d 1, 11 (Tex.Crim.App.2000) (citing Mata v. State, 939 S.W.2d 719, 729 (Tex.App. — Waco 1997, no pet.) (Vance, J., concurring)). When performing our review, we give due deference to the fact finder’s assessment of the weight and credibility of the evidence. Id. at 13. We will find the evidence factually insufficient only where necessary to prevent manifest injustice. Id.

Application of Standards

The court’s charge defined “deadly weapon” as “anything made or adapted for the purpose of inflicting death or serious bodily injury, or that in the manner of its use or intended use is capable of causing death or serious bodily injury.” Serious bodily injury was defined as bodily injury that “creates a substantial risk of death or that causes death, serious permanent disfigurement, or protracted loss or the impairment of the function of any bodily member or organ.”

The Evidence is Legally Sufficient

Shugart argues that his weapon was intended for self-defense and so could not be “manifestly” designed to inflict serious bodily injury as a matter of law. Tex. Pen.Code Ann. § 1.07(a)(17)(A) (Vernon 1994). However, “[s]ubsection (A), by its clear language, describes a deadly weapon by its physical characteristics.” McCain v. State, 22 S.W.3d 497, 502 (Tex.Crim.App.2000). For this reason, the Court of Criminal Appeals has rejected the theory that an object can be a deadly weapon under this subsection for reasons other than its physical characteristics. Id. Because it is the physical characteristics of an object which control the determination under subsection (A), the motivation behind the creation of an object, ie., whether the person who created the weapon intends to deploy it offensively or defensively to inflict death or serious bodily injury, does not control the classification of the object as a deadly weapon. See id. An object which is manifestly designed, made or adapted for the purpose of inflicting death or serious bodily injury in self-defense is a deadly weapon under subsection (A). Shugart’s claim that items intended for self-defense cannot be deadly weapons has been rejected by the Court of Criminal Appeals and does not establish a basis for finding the evidence legally insufficient.

Shugart also asserts that because the weapon did not, in fact, inflict death or serious bodily injury, it was imperative that the State establish the capability of the weapon to cause serious bodily injury or that it was displayed or used in a manner showing an intent to use it to cause death or serious bodily injury. He cites Garza v. State, 695 S.W.2d 726 (Tex. App.—Dallas, 1985), aff'd, 725 S.W.2d 256 (Tex.Crim.App.1987). However, in Thomas v. State, the Court of Criminal Appeals established that the State may prove that an object is a deadly weapon “by adducing sufficient evidence that it was, in fact, ‘manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury[.]’ If the evidence is adequate for such purpose, then it is sufficient to establish the object as a deadly weapon. No other proof is required.” Thomas v. State, 821 S.W.2d 616, 620 (Tex.Crim.App.1991). More specifically, the Court states that “it is not necessary to verify that the object was really capable of causing death, either in the manner of its actual use or in the manner of its intended use.” Id.

Here, the evidence establishes through the testimony of officers Eunice Cole, Brian Buster, and Carl Krischke that the device used by Shugart was a metal rod, “like an ice-pick type weapon,” sharpened to a point on one end with a cloth wrapped around the other end for use as a handle. Cole speculated that the metal rod was originally some sort of spring out of a night light. This description invokes the term “shank,” commonly used to describe “homemade stabbing devices” used as weapons in prison. See Berry v. State, 883 S.W.2d 332, 333 (Tex.App.—Waco 1992, no pet.). Viewing it in the light most favorable to the verdict, we find the evidence legally sufficient to justify a finding that the device was “manifestly designed, made, or adapted for the purpose of inflicting death or serious bodily injury.” Thomas, 821 S.W.2d at 620.

Shugart suggests that, even if there is evidence that the weapon was made or adapted to cause serious bodily injury, the fact that it could not cause such injury should bar a finding that it is a deadly weapon. However, as stated previously, it is not necessary to verify the object was really capable of causing death, either in the manner of its actual use or in the manner of its intended use. Id.

The nurse who treated Delarosa, Shannon Winters, testified that the weapon could possibly cause serious injury to the eye or ear, and could cause death if used to penetrate the arteries in the neck. Katy Hawkins, the nurse who treated Sessions, testified similarly. Carl Krischke, one of the guards who responded when Shugart attacked Delarosa and Sessions, testified that he had seen inmates seriously injured with weapons like the one Shu-gart had and that he believed Shugart’s weapon could have caused serious bodily injury. Viewed in the fight most favorable to the verdict, the evidence is legally sufficient to support a finding that the weapon was, in the manner of its use or intended use, capable of causing death or serious bodily injury. Tex.Pen.Code Ann. § 1.07(a)(17)(B).

The Evidence is Factually Sufficient

Shugart advances two theories to establish that the evidence was factually insufficient to support the deadly-weapon element. First, Shugart asserts the evidence implying that the weapon was designed only for self-defense outweighs the evidence showing it was “manifestly” designed to inflict serious bodily injury. As we established above, whether the creation of the weapon was motivated by a desire for self-defense is not the focus of the inquiry, and any evidence tending to establish this motivation could not overwhelm the evidence showing the physical characteristics of the object. Tex.Pen.Code Ann. § 1.07(a)(17)(A); McCain, 22 S.W.3d at 502.

Shugart also claims that the evidence is factually insufficient to show that the object was a deadly weapon under subsection (B) because “based on the injuries inflicted, [Shugart]’s statement and Delarosa’s testimony, a finding that the weapon was used in a manner indicating an intent to cause serious bodily injury is against the great weight and preponderance of the evidence.” However, “[t]he provision’s plain language does not require that the actor actually intend death or serious bodily injury; an object is a deadly weapon if the actor intends a use of the object in which it would be capable of causing death or serious bodily injury. The placement of the word ‘capable’ in the provision enables the statute to cover conduct that threatens deadly force, even if the actor has no intention of actually using deadly force.” McCain, 22 S.W.3d at 503. Thus, Shugart’s argument that the evidence is factually insufficient to support a finding that he intended to cause death or serious bodily injury is misplaced.¹

Moreover, the evidence is sufficient to support the jury’s finding that Shugart used the weapon in a maimer capable of causing serious bodily injury. The evidence showed that the injuries to both Delarosa and Sessions were superficial; in fact, Delarosa testified that he suffered no pain from the assault and Sessions said that he “didn’t feel it” when he was first stabbed. In his statement, Shugart indicated that he did not intend to kill Delaro-sa, but only wanted to get his “attention.” Delarosa also testified that he did not think that Shugart intended to hurt him. The injuries to Delarosa were in the chest. However, there was other evidence, detailed above, which indicated both that the weapon could cause serious bodily injury, that it was most likely to cause such injury if used against the victim’s eyes, ears, or neck, and that other inmates had been seriously injured by similar weapons “like” the one Shugart used. Given that Shugart specifically targeted Sessions’ head, which includes the eyes, ears, and neck, the jury was justified in finding that he used his weapon in a manner in which it was capable of causing serious bodily injury.

For these reasons, we must reject Shu-gart’s assertions that the evidence is factually insufficient. Johnson, 23 S.W.3d at 11. Shugart’s issues one and two are without merit.

EXCLUDED EVIDENCE

Shugart complains in his third issue that Terry McNeill, a friend with whom Shu-gart corresponded from prison, was not allowed to testify as to the contents of several letters Shugart had written to him. The letters were not brought to trial. McNeill attempted to testify that Shugart expressed fear of Delarosa because of a threatening letter he had received from Delarosa, but the court sustained the State’s objection that this testimony was hearsay. The “threatening letter” from Delarosa to Shugart was admitted into evidence.

Although the court did not rule on the State’s objection that this was not the best evidence of Shugart’s statements contained in the letter, the State nevertheless urges this position on appeal. It is well established that when a trial court’s ruling on the admission of evidence is correct for any reason, although a wrong or insufficient reason is given for its admissibility, the ruling must be sustained on appeal. See Sewell v. State, 629 S.W.2d 42, 45 (Tex.Crim.App. [Panel Op.] 1982); Miles v. State, 488 S.W.2d 790, 792 (Tex.Crim.App.1972); Spann v. State, 448 S.W.2d 128, 130 (Tex.Crim.App.1969). This rule of appellate review also applies when the court excludes evidence which the defendant offers into evidence. See Weatherred v. State, 975 S.W.2d 323, 323 (Tex.Crim.App.1998) (If the trial court’s decision to exclude evidence is correct on any theory of law applicable to the case, including Rule 403, it will be sustained.); see also Prystash v. State, 3 S.W.3d 522, 527 (Tex.Crim.App.1999); Smith v. State, 898 S.W.2d 838, 843 (Tex.Crim.App.1995). We must, therefore, determine whether the evidence was properly excluded under either theory.

It is Shugart’s contention that: 1) the excluded testimony went to his state of mind and, ultimately, to the issue of self-defense; and 2) the best evidence rule does not apply to this type of evidence. See Tex.R.Evid. 803,1002.²

We first address the argument that the court improperly excluded this testimony as hearsay. The testimony which Shugart attempted to elicit would be considered hearsay under Rule of Evidence 801 if no exception to the hearsay rule applies. See id. 801. An out-of-court statement offered during trial to prove the truth of the matter asserted is inadmissible unless the statement falls within one of the exceptions to the hearsay rule. Id. 801(d), 802. The hearsay exception which Shugart claims is applicable to his statements is found in Rule 803(3) of the Rules of Evidence: statements expressing the declarant’s then-existing state of mind are admissible. Id. 803(3). Such statements are relevant where self-defense is an issue in the case. Buhl v. State, 960 S.W.2d 927, 932 (Tex.App. — Waco 1998, pet. ref'd).

In Buhl v. State, we stated that a simple comment that the defendant said he was afraid of the victim would be admissible under Rule 803 because his fear would appear to be a statement of his then-existing emotional condition. Id. at 933. This is the type of testimony which Shu-gart attempted to elicit from McNeill. In Buhl, we found that the defense sought to elicit further explanation of the reason for Buhl’s fear, ie., that it was caused by the victim’s previously pulling a gun on him. Id. We found that the court acted within its discretion to exclude this further testimony because it was offered to prove the truth of a fact the declarant remembered or believed, ie., that the victim pulled a gun on him in the past. Id. Unlike Buhl, where the .relevance of the statement that Buhl was afraid hinged upon the truthfulness of his assertion that the victim had pulled a gun on him, the relevance of Shugart’s fear was dependent on a letter from Delarosa which was already in evidence. Because McNeill’s testimony would have been limited to the fact that Shugart had expressed fear of Delarosa, his testimony was not inadmissible as hearsay.

We next consider the State’s argument that the evidence was properly excludable on the basis of the best evidence rule. The Court of Criminal Appeals has considered the rationale behind the best evidence rule. In Englund v. State, the Court considered four reasons why the common-law best-evidence rule existed:

(1) The nature of documents is often such that the exact words are “of more than average importance, particularly in the case of operative or dispositive instruments ... where a slight variation of words may mean a great difference in rights.

(2) Secondary evidence — whether parol testimony or copies — is susceptible to both human and mechanical error. The rule, therefore, enhances the probability of accuracy.

(3) The rule promotes the prevention of fraud because it allows the parties to examine documents for any defects or alterations, and it dampens any desire to color testimony as to the contents of documents, since any testimony is subject to immediate corroboration.

(4) The appearance of the original may furnish information as to its authenticity and significance that may be lacking in a copy, such as handwriting, paper and the like.

Englund v. State, 946 S.W.2d 64, 67-68 (Tex.Crim.App.1997). The Rule was clearly intended to apply where one attempts to use a duplicate or to rely on one’s recollection rather than use an original when the language of the document itself is important. None of these reasons for requiring the original of a document can be construed to justify exclusion of verbal testimony or require that Shugart offer the letter itself into evidence. Thus, exclusion on this basis was likewise improper.

The exclusion of testimony is non-constitutional error governed by Rule of Appellate Procedure 44.2(b). Fowler v. State, 958 S.W.2d 853, 864-65 (Tex.App.— Waco 1997) aff'd, 991 S.W.2d 258 (Tex.Crim.App.1999). In applying the test for “harmless error” under Rule 44.2(b), our primary question is what effect the error had, or reasonably may have had, upon the jury’s decision. Id. at 865. We must view the error, not in isolation, but in relation to the entire proceeding. Id. We review the entire record to determine whether the error had more than a slight influence on the verdict. Id. at 866. If we find that it did, we must conclude that the error affected the defendant’s rights in such a way as to require a new trial. Id. If we have grave doubts about its effect on the outcome, we should find that the error was such as to require a new trial. Id. Otherwise, we should disregard the error. Id.

Shugart wanted the jury to hear from McNeill that Shugart had expressed fear of Delarosa and another inmate. That fear was based on a note that Shu-gart received from Delarosa. That note was admitted into evidence. It states, in full:

Fuck You Chavalon

And Just Leve Me

Alone I’m Not

Here No

More I Hope

You Die Or

Get Real Sick

And I Got A Big

Surprise For You³

Thus, the jury was aware of the threat which was the basis of the fear about which McNeill would have testified. Additionally, Delarosa testified on Shugart’s behalf. In his testimony, Delarosa explained to the jury that he wrote the note in question with the intent of threatening Shugart. This is evidence from which the jury could have inferred Shugart’s fear if it believed his self-defense theory.

However, those present at the time of the incident testified that Shugart was the aggressor during the incident in question. He approached Delarosa, and they began to argue. Delarosa then walked away and began talking to Officer Eunice Cole. Shu-gart then went up to Delarosa, slapped him, and then pulled out the homemade weapon and stabbed Delarosa with it. When Sessions attempted to intervene, Shugart stabbed him as well. In light of this evidence, it is doubtful that McNeill’s testimony could have had more than a slight influence on the verdict. Id. Issue three is without merit.

NECESSITY

In his last issue, Shugart proposes that the court erred in failing to submit an instruction on necessity to the jury. He asserts that there was evidence that Dela-rosa had threatened him and that he feared for his safety, thus justifying such an instruction.

It is a defense to prosecution that otherwise criminal conduct is justified by necessity if: 1) the actor reasonably believes that the conduct is immediately necessary to avoid imminent harm; 2) the harm sought to be avoided is clearly greater than the harm sought to be prevented by the statute violated; and 3) a legislative purpose to exclude the justification claimed for the conduct does not plainly appear. Rios v. State, 1 S.W.3d 135, 137 (Tex.App. — Tyler 1999, pet. ref'd) (citing Tex.Pen.Code Ann. § 9.22 (Vernon 1994)).

We first address whether the necessity defense may apply to the offense of possession of a deadly weapon in a penal institution. In January v. State, the Tyler Court found that the defense was not available for this offense. It stated: “[T]he legislative purpose of the statute is mutually exclusive with the defense of necessity. ... To allow inmates to possess deadly weapons under any circumstances would pose a significant safety threat to inmates and prison personnel alike, and would seriously undermine the security of penal institutions.” January v. State, 811 S.W.2d 631, 634 (Tex.App. — Tyler 1991, pet. ref'd). However, the Tyler Court has since reconsidered this holding in light of the Court of Criminal Appeals opinion in Spakes v. State, 913 S.W.2d 597, 598 (Tex.Crim.App.1996). See Rios, 1 S.W.3d at 137, n. 1.

In Spakes, the Court of Criminal Appeals held that the necessity defense applies “to all offenses unless the Legislature has specifically excluded it from them.” Spakes, 913 S.W.2d at 598 (emphasis added). At least two other courts of appeals have addressed this issue and held that the necessity defense can apply to the offense of possession of a deadly weapon in a penal institution. Gonzales v. State, 972 S.W.2d 877, 879 (Tex.App. — Texarkana 1998) rev’d on other grounds, 994 S.W.2d 170 (Tex.Crim.App.1999); Rivera v. State, 948 S.W.2d 365, 370 (Tex.App. — Beaumont 1997, no pet.). Following Spakes, we join our sister courts and hold that the defense of necessity may be available for the offense of possession of a deadly weapon in a penal institution. We now address whether the court should have instructed the jury on it.

Shugart offered evidence that he was afraid of Delarosa because of a note he received from him. We must consider whether this evidence shows that the “desirability and urgency of avoiding the harm clearly outweigh ... the harm sought to be prevented by the law proscribing the conduct....” Tex.Pen.Code Ann. § 9.22(2). By this statute, the Legislature sought to protect all inmates and employees present in the institution. Rios, 1 S.W.3d at 135. Appellant has not shown how his own safety, or indeed, the safety of any one individual, clearly outweighs the safety of numerous other inmates and employees of the Institutional Division of the Texas Department of Criminal Justice. Id.

Furthermore, in order to warrant a plea of justification based on necessity, the defendant must specifically admit to the offense. Allen v. State, 971 S.W.2d 715, 720 (Tex.App. — Houston [14th Dist.] 1998, no pet.); Auston v. State, 892 S.W.2d 141, 145 (Tex.App. — Houston [14th Dist.] 1994, no pet.); Pentycuff v. State, 680 S.W.2d 527, 528-29 (Tex.App. — Waco 1984, pet. ref'd). The necessity instruction is not required unless there was evidence from the accused admitting the offense, and henceforth claiming justification for having committed the offense because of other facts. See Maldonado v. State, 902 S.W.2d 708, 712 (Tex.App. — El Paso 1995, no pet.). Shugart did not admit the offense. Issue four is without merit.

Having found no merit in any of the issues presented, we affirm the judgment.

Justice GRAY concurring.

1 . We recognize that Shugart's argument is supported by a line of cases holding that if the evidence does not show actual injury, then there must be evidence of the actor’s intent to cause injury. See, e.g., Bailey v. State, 7 S.W.3d 721, 724 (Tex.App. — Corpus Christi 1999, pet. granted); Wade v. State, 951 S.W.2d 886, 892 (Tex.App. — Waco 1997, pet ref'd); Lockett v. State, 874 S.W.2d 810, 814 (Tex.App. — Dallas 1994, pet. ref’d). In our view, these holdings do not survive McCain. McCain v. State, 22 S.W.3d 497 (Tex.Crim.App.2000).

2 . We assume that the State is referencing Rule of Evidence 1002 when it claims that this evidence was not the "best evidence.” The State failed to cite any authority in its response to this issue.

3 . Spelling and punctuation as in original.