Date: 01-29-2017

Case Style:

Case Number: 04-16-00317-CR

Judge: Sandee Bryan Marion

Court: Fourth Court of Appeals San Antonio, Texas

Plaintiff's Attorney:

Jennifer Rossmeier
Nicholas A. LaHood

Defendant's Attorney:

Mike Robbins

Description: There is no dispute that appellant hit the complainant, D.W., with enough force to knock him down a staircase where D.W. hit his head hard enough to render him unconscious.1 There
also is no dispute the altercation began over appellant’s objecting to D.W. smoking on the porch
of the house. D.W. admitted appellant had many times told him not to smoke inside the house or
on the porch.
D.W. testified he could remember going to a store before the incident to buy cigarettes. He
testified that after he smoked a cigarette outside the house, he went inside the house, sat on the top
of the inside staircase, and fell asleep. D.W. stated the only other person present in the house was
appellant. The next thing D.W. remembered was waking to find an ambulance, the police, and his
mother near him. D.W. said he remembered nothing else. He was taken to the hospital for injuries
to his ear and eye.
D.W.’s mother, Schernette Patrick, testified that on the day of the assault she was away
from home when she received the following text message from appellant:
Appellant: Come get your son ask not to smoke in front door and he done a [sic] again Schernette: Ok Appellant: POLICE ambulances [sic] is on the way too Schernette: What you do Appellant: See it for yourself Appellant: See you when I get out [sic] jail later

1 D.W. was seventeen years old at the time of the trial. This opinion will refer to him by his initials. Appellant is D.W.’s step-father.
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Schernette testified she immediately went home, where she arrived in time to see appellant
being placed in handcuffs. She said appellant told her that D.W. was smoking in front of the door
and being disrespectful. She said appellant did not tell her D.W. attacked him.
The arresting officer testified appellant said “he was fed up with his — the victim, that
[D.W.] doesn’t listen to him and that he was smoking on the front porch after he told him not to.
[Appellant] said he hit [D.W.].” The officer also said appellant told him “the victim was pumped
up to him and [appellant] said he swung, he ducked, and I hit him.” Two other police recordings
from the scene also indicated appellant was upset that D.W. was smoking on the front porch.
Appellant testified that on the day of the incident he smelled cigarette smoke inside the
house, but he decided to wait for D.W. to enter the house before speaking to him. When he heard
the front door close, he went to the inside staircase where D.W. was on the steps. Appellant said
that when he asked D.W. why he was still smoking cigarettes on the front porch, D.W. stood up
and said “I don’t have to listen to you.” Appellant testified that as he walked closer to D.W., D.W.
balled up his fists and started coming towards him.
Q. What were you thinking was going to happen? A. I felt like I was . . . going to get hit, so I reacted before he [D.W.] did. Q. Well, when you say you reacted before he did, what did he do? A. He brought his arms up like he was getting ready to throw a punch. Q. And did he start to throw a punch? A. He [drew] back and [the] next thing you know my left hand react[ed].

Appellant admitted hitting D.W. and allowing him to fall down the stairs. Appellant said
D.W. was unconscious and bleeding, and appellant poured water on him to wake him up.
Appellant called 9-1-1. In the 9-1-1 recording, appellant can be heard stating, “I got a young man
who tried to do some harm to me. I asked him several times to quit smoking in front of my
doorway.” When asked if he needed the police, appellant said “No, I need ambulances [sic] . . .
we just got into a fight.”
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On cross-examination, appellant said D.W. disrespected him by saying he [D.W.] did not
need to do what appellant told him, and appellant “got a little angry.” The jury heard a recording
of a conversation appellant had with a police officer while they stood on the porch outside
appellant’s house. In the conversation, appellant did not tell the police D.W. attacked him and he
did not tell the police he acted in self-defense. Instead, appellant told the police,
[D.W.] [d]one it [smoking in front of the doorway] yesterday. Done it today. He wanna sit up here and act like he don’t listen to what I’m sayin’ an I’m the parent, I’m the one up in this house, me and my wife and he don’t wanna listen. I had to put it on his ass [unintelligible]. He wanna act hard. I showed him hard. So, if y’all gonna arrest me for doing that, y’all may well go on and arrest me. ‘Cause I done told him several times to quit smoking sittin’ right here.

During closing arguments, defense counsel argued self-defense, and the State argued
appellant did not reasonably believe self-defense was immediately necessary and it was not
immediately necessary. The jury charge instructed the jury that if it found, beyond a reasonable
doubt, that appellant intentionally or knowingly or recklessly caused bodily injury to D.W. by
striking D.W. with his hand or pulling D.W. with his hand, then the jury could find appellant guilty.
The charge also instructed the jury on self-defense. The jury found appellant guilty, and the trial
court assessed punishment. This appeal followed. MOTION TO QUASH In his first issue, appellant asserts the trial court erred by overruling his motion to quash
because the amended information did not state the facts relied upon to constitute recklessness. The
information stated as follows:
. . . defendant, did then and there intentionally, knowingly, and recklessly cause bodily injury to another, namely, [D.W.], hereinafter referred to as complainant, by striking the complainant with the hand of the defendant and pulling the complainant with the hand of defendant.

At the hearing on appellant’s motion to quash, appellant argued the information did not
allege the facts and circumstances that would make pulling D.W. with appellant’s hand criminally
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reckless. The trial court denied the motion, and we review its ruling de novo because the
sufficiency of a charging instrument presents a question of law. Smith v. State, 309 S.W.3d 10,
13-14 (Tex. Crim. App. 2010).
“Whenever recklessness . . . enters into or is a part or element of any offense, or it is charged
that the accused acted recklessly . . . in the commission of an offense, the complaint, information,
or indictment in order to be sufficient in any such case must allege, with reasonable certainty, the
act or acts relied upon to constitute recklessness[,] and in no event shall it be sufficient to allege
merely that the accused, in committing the offense, acted recklessly or with criminal negligence.”
TEX. CRIM. PROC. CODE ANN. art. 21.15 (West 2009). “When it is alleged that the accused acted
recklessly, Article 21.15 of the Texas Code of Criminal Procedure requires additional language in
the charging instrument.” State v. Rodriguez, 339 S.W.3d 680, 682 (Tex. Crim. App. 2011). “This
language must set out ‘the act or acts relied upon to constitute recklessness[.]’” Id.
However, a charging instrument need not be quashed for failure to comply with Article
21.15 when it also alleges the defendant acted with intent or knowledge. Crawford v. State, 646
S.W.2d 936, 937 (Tex. Crim. App. 1983); State v. Stukes, 490 S.W.3d 571, 576 (Tex. App.—
Houston [14th Dist.] 2016, no pet.); State v. Castorena, 486 S.W.3d 630, 635 (Tex. App.—San
Antonio 2016, no pet.) (“Although the court in Crawford did not reference Article 21.15, the
court’s holding is clear: an indictment that alleges a defendant acted recklessly is not insufficient
if it fails to allege the act or acts relied upon to constitute recklessness if the indictment also alleges
the defendant acted intentionally and/or knowingly.”). The charging instrument here, like that in
Crawford and Castorena, alleges not only recklessness, but intentional and knowing conduct.

Accordingly, we hold the State was not required under Article 21.15 to allege the act or acts relied
upon to constitute recklessness because, in addition to alleging appellant acted recklessly, the
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information alleged he acted intentionally or knowingly. Therefore, the trial court did not err in
denying appellant’s motion to quash. EXCLUSION OF EVIDENCE In his second issue, appellant asserts the trial court abused its discretion when it prohibited
him from presenting evidence of D.W.’s alleged 2015 assault on appellant. Appellant argues the
evidence was relevant to his contention at trial that his apprehension of danger was reasonable.
We review a trial court’s decision to admit or exclude evidence under an abuse of discretion
standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).
A defendant who raises the issue of self-defense may introduce evidence of the
complainant’s violent character. TEX. R. EVID. 404(a)(2)(A); Torres v. State, 71 S.W.3d 758, 760
(Tex. Crim. App. 2002). Specific, violent acts of misconduct may be admitted to show the
reasonableness of the defendant’s fear of danger, or to show the complainant was the first
aggressor. Torres, 71 S.W.3d at 760. But specific acts are admissible only to the extent they are
relevant for a purpose other than character conformity. TEX. R. EVID. 404(b)(1); Torres, 71 S.W.3d
at 760. “In the context of proving the reasonableness of a defendant’s apprehension, this evidence
is relevant to show the defendant’s state of mind.” Torres, 71 S.W.3d at 760 n.4. Therefore, the
defendant must show he was aware of the specific acts for the evidence to be admissible. Id.
During trial, appellant testified D.W. balled up his fists and started coming towards
appellant, at which point defense counsel asked appellant what he was thinking. Appellant replied,
“I felt like I was being hit — going to get hit, so I reacted before he did. . . . [D.W.] draw [sic]
back and next thing you know my left hand react[ed].” When defense counsel asked appellant if
he had seen “that same motion by the complainant before,” appellant responded, “Yes.” The State
then objected that defense counsel was attempting to introduce evidence of prior specific conduct,
and defense counsel disagreed, arguing he was not attempting to show character conformity, but
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instead, to show the reasonableness of appellant’s apprehension that D.W. might hit him. The trial
court did not allow defense counsel to pursue this line of questioning, but allowed counsel to present the following bill of exception.2 Appellant testified that, in 2015, he was in his bedroom
while D.W. was talking to his mother. At some point during the conversation with his mother,
D.W. “[b]alled up his fists . . . like he was going to punch his mom.” Appellant stepped between
D.W. and his mother, and said to D.W., “You don’t do that.” D.W. then hit appellant in the mouth.
Appellant called the police, and D.W. was arrested. Appellant said that D.W. acted the same way
on the staircase on the day of the incident underlying appellant’s criminal trial.
At trial and on appeal, defense counsel argued the above testimony was offered to show
appellant thought D.W. was going to hit him and his apprehension was reasonable. On appeal, the
State concedes the excluded evidence was admissible for the limited purpose of establishing the
reasonableness of appellant’s self-defense state of mind. We also agree the trial court erred in
excluding the evidence. Therefore, we next consider whether appellant was harmed by the trial
court’s error.
To prove harm when error is non-constitutional, a defendant must establish that the error,
defect, irregularity, or variance affected his substantial rights. TEX. R. APP. P. 44.2(b). A
substantial right is affected when the error had a substantial and injurious effect or influence in
determining the jury’s verdict. See Morales v. State, 32 S.W.3d 862, 867 (Tex. Crim. App. 2000).
In assessing the likelihood that the jury’s decision was adversely affected by the error, an appellate
court considers everything in the record. Id. This includes testimony, physical evidence, jury
instructions, the State’s theories and any defensive theories, closing arguments, and voir dire, if
applicable. Bagheri v. State, 119 S.W.3d 755, 763 (Tex. Crim. App. 2003). Important factors
2 The bill of exception was not made until after both sides rested, closing arguments were presented, the jury returned its verdict, and the trial court sentenced appellant.
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include the nature of the evidence supporting the verdict, the character of the alleged error and
how it might be considered in connection with other evidence in the case, and may include whether
the State emphasized the error and whether overwhelming evidence of guilt was present. Id.
The jury heard undisputed evidence that appellant was upset with D.W. because D.W. was
smoking on the front porch—something appellant repeatedly asked D.W. not to do. The record
contains police recordings and the text message from appellant to his wife that he felt disrespected
by D.W. and was angry with D.W. The jury heard appellant tell the 9-1-1 operator that D.W.
“tried to do some harm to” appellant, and the jury heard appellant’s own testimony that he thought
D.W. intended to hit him because he had seen D.W. on another occasion ball up his fists. However,
the jury also heard that at no time did appellant tell the responding police officers or his own wife
that he acted in self-defense. From this evidence, the jury could reasonably infer appellant hit
D.W. in anger, and not because he felt threatened by D.W. On this record, we conclude the jury’s
decision was not adversely affected by the trial court’s error in excluding evidence of D.W. hitting
appellant in 2015.
RESTITUTION During the punishment phase, the State recommended the trial court order medical
restitution to be determined by the probation department. Defense counsel objected to medical
restitution being determined by the probation department, and argued restitution should be
determined by the trial court. The trial court ordered restitution, “if any,” without a hearing. The
trial court’s judgment does not contain a restitution amount, and it appears the “medical restitution
if any for injuries” was imposed as a condition of appellant’s community supervision. On appeal,
both appellant and the State agree the trial court erred by not determining the amount, if any, of
restitution to be paid by appellant. We also agree.
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A challenge to a restitution order is reviewed under an abuse of discretion standard. Reasor
v. State, 281 S.W.3d 129, 135 (Tex. App.—San Antonio 2008, pet. ref’d). The court abuses its
discretion when it acts in an arbitrary or unreasonable manner. Id. “Only the court in which the
defendant was tried may grant community supervision, impose conditions, revoke the community
supervision, or discharge the defendant, unless the judge has transferred jurisdiction of the case to
another court with the latter’s consent.” TEX. CODE CRIM. PROC. ANN. art. 42.12, § 10(a) (West
Supp. 2016). “This authority may not be delegated to a probation officer or anyone else.” De
Leon v. State, 466 S.W.2d 573, 574 (Tex. Crim. App. 1971). The amount of restitution must be
just and supported by a factual basis within the record. Burt v. State, 445 S.W.3d 752, 758 (Tex.
Crim. App. 2014). If there is a lack of a sufficient factual basis, “appellate courts should vacate
and remand the case for a restitution hearing because the trial judge is authorized to assess
restitution, . . . .” Id.; see also Barton v. State, 21 S.W.3d 287, 290 (Tex. Crim. App. 2000) (“The
proper procedure where the amount of restitution ordered as a condition of community supervision
is not supported by the record is to abate the appeal, set aside the amount of restitution, and remand
the case for a hearing to determine a just amount of restitution.”); Cartwright v. State, 605 S.W.2d
287, 289 (Tex. Crim. App. 1980) (“Due process considerations . . . require that there must be
evidence in the record to show that the amount set by the court has a factual basis”).
Here, the trial court did not determine the amount of restitution and, therefore, there is no
evidence in the record to support any restitution amount. Accordingly, we conclude the trial court
erred by not conducting a restitution hearing.

Outcome: