AFFIRM; Opinion Filed December 4, 2012.
In The (!.mirt tif Appra1 .Fifth thitrict uf Lixai at IatLa No. 05-11-01149-CR
GEORGDAN JERMAINE WILSON, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F09-14866-M
MEMORANDUM OPINION Before Justices Morris, Moseley, and Myers Opinion By Justice Mose icy
Georgdan Jerrnaine Wilson pleaded not guilty by reason of insanity to the charge of
aggravated assault with a deadly weapon, causing serious bodily injury, and involving family violence. The jury found him guilty of the offense as charged in the indictment and assessed
punishment at fifty-two years’ imprisonment and a $10,000 fine. Wilson raises two issues on appeal:
(1) the triat court erred by admitting evidence of extraneous offenses and (2) the trial court erred by resubmitting the jury charge after the jury had returned a finding of guilt on an incorrect verdict
form. The background of the case and the evidence adduced at trial are well kiown to the parties:
thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue
this memorandum opinion. TEx. R. APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment. The record indicates that on October 30, 2009, Wilson stabbed his wife, Kilani Walker,
twelve times with a large kitchen knife. Walker suflèred a punctured lung, an injury to her
pericardiuzn, and a severed tendon in her index finger. She was nevertheless able to jump out a
window and call for help.
Wilson offered evidence from a psychologist that he was bipolar and had a psychotic
disorder. The psychologist testified that Wilson was delusional at the time of the offense and that
Wilson thought his conduct was “morally justified.” but the psychologist admitted Wilson did not
meet the legal definition of insanity because he knew his conduct was wrong.
After the defense rested, the State offered evidence ofprior threats and bad acts by Wilson
toward Walker. Wilson objected that the evidence was not relevant and was unfairly prejudicial.
The trial court overruled the objections. Walker testified that during a phone call in September or
October 2009, Wilson threatened to kill her if he found her with someone else. She also testified
that sometime in October 2009, Wilson was angered when he found modeling pictures of her on a
flash drive and he gave her a black eye. On October27, 2009, Walker woke up to find Wilson going
through her purse and phone. He picked up a knife, but put it down and threw a glass at her. She
escaped and called police. Wilson was arrested. He was released and returned borne the night of
October 29, 2009.
Wilson contends the trial court abused its discretion by admitting this evidence because it
was not relevant to rebut his insanity defense and it was unfairly prejudicial. See TEX. it EVil). 403,
404(b). The State argues the evidence was relevant to prove intent or motive and was not unfhirly
prejudicial.
An issue in this case was whether Wilson could form the intent necessary to commit the
offense even if he did not meet the legal definition of insanity. Thus, the State needed the rebuttal
—2-. evidence to prove intent apart from negating the insanity defense. The trial court did not abuse its
discretion by finding the evidence was relevant to prove intent or motive. See TEx. R. EviD. 404(b);
Big/n c State, 92 S.W.2d 864, 883 (Tex.C rim. App. 1994) (“appellant’s insanity] affirmative I defense does not relieve the State from its burden of proving all the elements beyond a reasonable
doubt”).
Relevant evidence may he excluded if the probative value of the evidence is “substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. or by
considerations of undue delay, or needless presentation of cumulative evidence.” TEx. R. EvID. 403;
Gkliobianco c State, 210 S.W.3d 637, 641—42 (Tex. Crim. App. 2006) (listing factors in balancing
analysis required by rule 403). The trial court must balance the probative force of and the
proponent’s need for the evidence against any tendency the evidence has to suggest an improper
basis for decision, to confuse or distract from the main issues, or to be given undue weight by a jury
not equipped to evaluate its probative force, and the likelihood of consuming an inordinate amount
of time or repeating evidence already admitted. Gigliobianco, 210 S.W.3d at 64 1—42.
The evidence at issue was probative of Wilson’s intent and indicated the nature of his
relationship with Walker in the days leading up to the offense. The evidence did not consume a
significant amount of time and was not cumulative of other evidence. Although Wilson argues the
evidence painted him as a violent abusive husband, given the violence of the actual offense
compared to the prior acts, it is unlikely the evidence impressed the jury in an irrational and indelible
manner. See Martinez State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010) (“Rule 403 does not
require exclusion of evidence simply because it creates prejudice; the prejudice must be ‘unfair.”),
cert. denied, 131 S. Ct. 2966 (U.S. 2011). We cannot say the trial court abused its discretion by
admitting the evidence. See Gigliobianco, 210 S.W.3d at 642—43. We overrule Wilson’s first issue.
—— Wilson’s second issue contends the trial court erred by resubmitting the guilt/innocence
charge after the jury returned a finding of guilt on an incorrect verdict fonn. He contends the jury
found him guilty of a lesser included offense of assault and he should have been acquitted of the
aggravated assault offense.
The jury charge instructed the jury on aggravated assault with a deadly weapon. causing
serious bodily injury, and involving family violence as charged in the indictment. The charge did
not include an instruction on any lesser included offenses. However, the verdict form originally
submitted to the jury stated, “We, the jury, find the defendant guilty of the offense of assault family
violence enhanced as charged in the indictment” Thejury found Wilson guilty using this form. The
trial court polled the jurors and they each confirmed their verdict was guilty The State then
presented its first witness at the punishment phase.
On the next day of trial, outside the presence ofthe jury, the trial court proposed submitting
the guilt/innocence charge to the jury with a revised verdict form stating “We, the jury, find the
defendant guilty of the offense of aggravated assault with a deadly weapon, serious bodily injury
family violence as charged in the indictment” Wilson objected to resubmitting the charge with the
revised verdict form, arguing that the jury found him guilty ofassault with familyviolence enhanced
and he had not been charged with that offense. Wilson requested a directed verdict of not guilty or
a mistrial. The trial court denied these requests.
The trial court told the jury there had been an error in the jury charge and submitted the
charge on guilt/innocence with the revised verdict form to them. The jury retired to deliberate. A
few minutes later, the jury returned a finding of guilty on the revised verdict form.
Our first duty in analyzing a jury charge issue is to decide whether error exists. Middleton
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AFFIRM; Opinion Filed December 4, 2012.
In The (!.mirt tif Appra1 .Fifth thitrict uf Lixai at IatLa No. 05-11-01149-CR
GEORGDAN JERMAINE WILSON, Appellant
THE STATE OF TEXAS, Appellee
On Appeal from the 194th Judicial District Court Dallas County, Texas Trial Court Cause No. F09-14866-M
MEMORANDUM OPINION Before Justices Morris, Moseley, and Myers Opinion By Justice Mose icy
Georgdan Jerrnaine Wilson pleaded not guilty by reason of insanity to the charge of
aggravated assault with a deadly weapon, causing serious bodily injury, and involving family violence. The jury found him guilty of the offense as charged in the indictment and assessed
punishment at fifty-two years’ imprisonment and a $10,000 fine. Wilson raises two issues on appeal:
(1) the triat court erred by admitting evidence of extraneous offenses and (2) the trial court erred by resubmitting the jury charge after the jury had returned a finding of guilt on an incorrect verdict
form. The background of the case and the evidence adduced at trial are well kiown to the parties:
thus, we do not recite them here in detail. Because all dispositive issues are settled in law, we issue
this memorandum opinion. TEx. R. APP. P. 47.2(a), 47.4. We affirm the trial court’s judgment. The record indicates that on October 30, 2009, Wilson stabbed his wife, Kilani Walker,
twelve times with a large kitchen knife. Walker suflèred a punctured lung, an injury to her
pericardiuzn, and a severed tendon in her index finger. She was nevertheless able to jump out a
window and call for help.
Wilson offered evidence from a psychologist that he was bipolar and had a psychotic
disorder. The psychologist testified that Wilson was delusional at the time of the offense and that
Wilson thought his conduct was “morally justified.” but the psychologist admitted Wilson did not
meet the legal definition of insanity because he knew his conduct was wrong.
After the defense rested, the State offered evidence ofprior threats and bad acts by Wilson
toward Walker. Wilson objected that the evidence was not relevant and was unfairly prejudicial.
The trial court overruled the objections. Walker testified that during a phone call in September or
October 2009, Wilson threatened to kill her if he found her with someone else. She also testified
that sometime in October 2009, Wilson was angered when he found modeling pictures of her on a
flash drive and he gave her a black eye. On October27, 2009, Walker woke up to find Wilson going
through her purse and phone. He picked up a knife, but put it down and threw a glass at her. She
escaped and called police. Wilson was arrested. He was released and returned borne the night of
October 29, 2009.
Wilson contends the trial court abused its discretion by admitting this evidence because it
was not relevant to rebut his insanity defense and it was unfairly prejudicial. See TEX. it EVil). 403,
404(b). The State argues the evidence was relevant to prove intent or motive and was not unfhirly
prejudicial.
An issue in this case was whether Wilson could form the intent necessary to commit the
offense even if he did not meet the legal definition of insanity. Thus, the State needed the rebuttal
—2-. evidence to prove intent apart from negating the insanity defense. The trial court did not abuse its
discretion by finding the evidence was relevant to prove intent or motive. See TEx. R. EviD. 404(b);
Big/n c State, 92 S.W.2d 864, 883 (Tex.C rim. App. 1994) (“appellant’s insanity] affirmative I defense does not relieve the State from its burden of proving all the elements beyond a reasonable
doubt”).
Relevant evidence may he excluded if the probative value of the evidence is “substantially
outweighed by the danger of unfair prejudice, confusion of the issues, or misleading the jury. or by
considerations of undue delay, or needless presentation of cumulative evidence.” TEx. R. EvID. 403;
Gkliobianco c State, 210 S.W.3d 637, 641—42 (Tex. Crim. App. 2006) (listing factors in balancing
analysis required by rule 403). The trial court must balance the probative force of and the
proponent’s need for the evidence against any tendency the evidence has to suggest an improper
basis for decision, to confuse or distract from the main issues, or to be given undue weight by a jury
not equipped to evaluate its probative force, and the likelihood of consuming an inordinate amount
of time or repeating evidence already admitted. Gigliobianco, 210 S.W.3d at 64 1—42.
The evidence at issue was probative of Wilson’s intent and indicated the nature of his
relationship with Walker in the days leading up to the offense. The evidence did not consume a
significant amount of time and was not cumulative of other evidence. Although Wilson argues the
evidence painted him as a violent abusive husband, given the violence of the actual offense
compared to the prior acts, it is unlikely the evidence impressed the jury in an irrational and indelible
manner. See Martinez State, 327 S.W.3d 727, 737 (Tex. Crim. App. 2010) (“Rule 403 does not
require exclusion of evidence simply because it creates prejudice; the prejudice must be ‘unfair.”),
cert. denied, 131 S. Ct. 2966 (U.S. 2011). We cannot say the trial court abused its discretion by
admitting the evidence. See Gigliobianco, 210 S.W.3d at 642—43. We overrule Wilson’s first issue.
—— Wilson’s second issue contends the trial court erred by resubmitting the guilt/innocence
charge after the jury returned a finding of guilt on an incorrect verdict fonn. He contends the jury
found him guilty of a lesser included offense of assault and he should have been acquitted of the
aggravated assault offense.
The jury charge instructed the jury on aggravated assault with a deadly weapon. causing
serious bodily injury, and involving family violence as charged in the indictment. The charge did
not include an instruction on any lesser included offenses. However, the verdict form originally
submitted to the jury stated, “We, the jury, find the defendant guilty of the offense of assault family
violence enhanced as charged in the indictment” Thejury found Wilson guilty using this form. The
trial court polled the jurors and they each confirmed their verdict was guilty The State then
presented its first witness at the punishment phase.
On the next day of trial, outside the presence ofthe jury, the trial court proposed submitting
the guilt/innocence charge to the jury with a revised verdict form stating “We, the jury, find the
defendant guilty of the offense of aggravated assault with a deadly weapon, serious bodily injury
family violence as charged in the indictment” Wilson objected to resubmitting the charge with the
revised verdict form, arguing that the jury found him guilty ofassault with familyviolence enhanced
and he had not been charged with that offense. Wilson requested a directed verdict of not guilty or
a mistrial. The trial court denied these requests.
The trial court told the jury there had been an error in the jury charge and submitted the
charge on guilt/innocence with the revised verdict form to them. The jury retired to deliberate. A
few minutes later, the jury returned a finding of guilty on the revised verdict form.
Our first duty in analyzing a jury charge issue is to decide whether error exists. Middleton
v. State, 125 S.W.3d 450,453 (‘rex. Crim. App. 2003); see also Ngo v. State 175 S.W.3d 738, 743
-4- (Tex. Crim. App. 2005). If we find error, we apply the appropriate harm analysis depending on
whether the error was preserved in the trial court. See Jennings v. State. 302 S.W.3d 306,311 (Tex.
Crim. App. 2010) (all jury-charge errors are cognizable on appeal, but unobjected-to error is
reviewed for “egregious harm,” while objected-to error is reviewed for “some harm”); Alnjanza v. State. 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh’g). A verdict form is part of the
charge and an error in the verdict form is reviewed for harm under the Abnanza standard. Jennings,
302 S.W.3d at 307, 311.
Wilson contends the finding on the incorrect verdict fonu was a finding of guilt on a lesser
included offense and an acquittal on the greater offense. We disagree. First, no lesser included
offense was submitted to the jury. See TEX. CODE CLUM. PROC. ANN. art. 37.01 (West 2006)
(defining verdict as a “written declaration by a jury of its decision of the issue submitted to it in the
case”). The charge instructed the jury on the ofibnse of aggravated assault with a deadly weapon.
causing serious bodily injury, and with family violence as charged in the indictment The charge
instructed thejury on Wilson’s insanity affirmative defense, and included the following instruction:
Under the instructions given you herein, you will state in your verdict whether you find the defendant “guilty.” or “not guilty” or “not guilty by reason of insanity” of the offense ofaggravated assault as charged in the indictment and you will make no finding in this verdict as to punishment.
if you do not so believe, or if you have a reasonable doubt thereof, then you will acquit the defendant and say by your verdict “not guilt3c”
The finding on the incorrect verdict form was not a finding on a lesser included offense because none
was submitted to the jury.
Second, there is no evidence in the record that “would permit ajuryrationaflyto find that if
the defendant is guilty; he is guilty only ofthe lesser-included offense.” Hall v. State, 225 S.W.3d
524, 536 (rex. Crini. App. 2007) (quoting Bignall v. State, 887 S.W.2d 21,23 (Tex. Crim. App.
-5-. 1994>). In denying Wilson’s request for a directed verdict or tor a misinal, the trial Court stated that
no lesser included offense instruction had been submitted to the jury and the evidence did not raise
a lesser included offense, There is no evidence the knife used was not a deadly weapon or that
Walker did not suffer serious bodily injury.
In adchtion, the trial court may withdraw and correct a jury charge if convinced the charge
is erroneous. See Smith v. State, 898 S.W.2d 838, 854—55 (Tex. Crim. App. 1995); Jackson v. State,
656 S.W.2d 673, 674 (Tex. App.—Fort Worth 1983, no pet.) (trial court did not commit harmful
error by submitting correct verdict form afterjury returned guilty finding on incorrect verdict form).
Where the defendant elects to have the jury assess punishment, the verdict is not complete until the
jury has rendered a finding “on both the guilt or innocence of the defendant and the amount of
punishment.” TEx. CODE CR1M. PROC. ANN. art. 37.07 § 3(c)(West Sup. 2012). Thus, at the time
the trial court resubmitted the guilt/innocence charge, the verdict was not complete as to punishment.
The trial court did err by withdrawing the charge and correcting the error in the verdict form.
We conclude the trial court did not err by denying Wilson’s request for a directed verdict or
a mistrial and that there is no error in the jury charge. We overrule Wilson’s second issue.
We affirm the trial court s judgment
JIM Mç$ELEY JUSTICE
Do Not Publish TEx. R. App. P. 47.2(b) 111 149F.U05
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JUDGMENT (iEORGDAN JERMAINE WILSON, Appeal from the 1 94th Judicial District Appellant Court of Dallas County, Texas. (Tr.Ct.No. F09- 14S66-M). No. 05-1 1-01149-CR Opinion delivered by Justice Moseley, Justices Morris and Ivlyers participating. THE STATE OF TEXAS, Appellee
Based on the Court’s opinion of this date, the judgment of the trial court is AFF1RIVWD,
Judgment entered December 4, 2012.
. .
I I .1<
JIM MOSELEY JUSTiCE