05-10-00331-CR Beckett, Anthony v. The State of Texas
Before Justices Bridges, O’Neill, and Fillmore
Opinion By Justice Fillmore
A jury convicted appellant Anthony Beckett of the offense of intentionally and knowingly causing serious bodily injury to a child fourteen years of age or younger. The jury assessed punishment of eighty years’ imprisonment. In his first five issues, Beckett contends the trial court abused its discretion (1) by limiting Beckett’s presentation of “character evidence” of mental illness to specific instances of conduct that occurred within one week of the child’s death; (2) by restricting an expert’s opinion testimony related to Beckett’s mental illness; (3) by holding that Beckett did not present sufficient evidence of insanity to justify shifting the burden to the State to prove sanity; (4) by excluding evidence and argument establishing Beckett’s lack of mens rea; and (5) by denying Beckett’s request to instruct the jury that his pre-trial detention is no inference of guilt. In his sixth issue, Beckett argues the trial court violated his due process right to present a defense. We affirm the trial court’s judgment. 1
Christopher Dotson (Christopher), the six-year old son of Beckett’s girlfriend, Erica Dotson (Erica), died on January 13, 2009, after being whipped by Beckett with a belt and by hand for several days and after being dunked under water by Beckett on the day of his death. Beckett was indicted for the first-degree felony offense of intentionally or knowingly causing serious bodily injury to Christopher, a child under the age of fourteen, “by holding [Christopher] under water with defendant’s hands and by striking [Christopher] with defendant’s hand, a belt, and an unknown object.” The indictment also alleged that during the commission of the offense, Beckett used a deadly weapon.
First Issue-“Character Evidence” of Mental Illness
Beckett asserted insanity as an affirmative defense to the charged offense. “It is an affirmative defense to prosecution that, at the time of the conduct charged, the actor, as a result of severe mental disease or defect, did not know that his conduct was wrong.” Tex. Penal Code Ann. § 8.01(a) (West 2011). The defendant bears the burden of proof of insanity, which must be established by a preponderance of the evidence, Riley v. State, 830 S.W.2d 584, 585 (Tex. Crim. App. 1992), and evidence of insanity may consist of expert and lay opinion. Pacheco v. State, 757 S.W.2d 729, 736 (Tex. Crim. App. 1988).
In his first issue, Beckett asserts the trial court abused its discretion when it limited his presentation of “character evidence” of mental illness to specific instances of conduct that occurred within one week of Christopher’s death. Beckett argues that to satisfy his burden of proof of insanity, he presented three lay witnesses to describe his specific instances of conduct: Jason Beckett (Jason), Beckett’s brother; Kimberly Beckett (Kimberly), Beckett’s sister; and David LaFlore (LaFlore), Beckett’s cousin. Beckett claims that in limiting lay testimony concerning specific instances of conduct testimony, the trial ruled: . . . I’m going to permit [Beckett through Jason] to give a brief history of hospitalizations or what have you, or commitments, but no specific acts by – descriptions by the witness unless they are close in time to the day of the offense, within a couple days basically, or, you know, maybe a week if it happens to be a week beforehand. But stuff that happens years ago is not going to be allowed.
Beckett contends the trial court abused its discretion “when it imposed a temporal-proximity rule that the law does not require.”
Beckett argues the specific instances of conduct were admissible under rule of evidence 405(b) to prove his “character of insanity.” See Tex. R. Evid. 405(b) (“In cases in which a person’s character or character trait is an essential element of a charge, claim or defense, proof may also be made of specific instances of that person’s conduct.”). Beckett contends that specific instances of his conduct that occurred years prior to Christopher’s death were related to Beckett’s history of severe mental illness. He argues that the trial court’s prohibition of lay testimony regarding those instances “undercut the impact of the testimony” of Jason and LaFlore. 2 At trial, Beckett’s defense counsel proffered that witnesses Jason and LaFlore would have testified regarding specific instances in which Beckett reported God talking to him, reported God writing to him in the snow, and reported or believed that a devil was after him. Beckett argues that had the jury heard the excluded evidence, there is a reasonable probability that the result of the trial would have been different. See Tex. R. App. P. 44.2(b).
The State responds to Beckett’s contentions by arguing that error, if any, by the trial court was harmless because the same evidence was admitted in evidence before the jury. We agree. The trial court’s refusal to admit evidence is reversible only if the offered evidence is relevant and its exclusion was harmful to the accused. See Tex. R. App. P.44.2(b); see alsoCanto-Deport v. State, 751 S.W.2d 698, 700 (Tex. App.-Houston [1st Dist.] 1988, pet. ref’d). Harmless error occurs when, beyond a reasonable probability, the error made no contribution to the conviction or punishment. Canto-Deport, 751 S.W.2d at 700. Where the same or similar evidence is elicited from another source, the exclusion of such evidence may be harmless. See Womble v. State, 618 S.W.2d 59, 62 (Tex. Crim. App. [Panel Op.] 1981) (“When a defendant offers the same testimony as that objected to, or the same evidence is introduced from another source, without objection, the defendant is not in position to complain on appeal.”).
Assuming, without deciding, that the trial court erred in not permitting Jason or LaFlore to testify that years prior to the offense, Beckett reported God talking to him, reported God writing to him in the snow, and reported or believed that a devil was after him, this same evidence was admitted in evidence before the jury through the testimony of other witnesses. Beckett elicited testimony from his expert, Myrna Varness Dartson, Ph.D., a licensed psychologist, who testified she performed a psychological evaluation of Beckett. In conjunction with that evaluation, she reviewed Beckett’s psychological records that dated to his childhood. Dr. Dartson testified that Beckett first received psychological treatment at the age of six, as a patient at Timberlawn Psychiatric Hospital, because he thought the devil was trying to kill him.
Beckett also elicited testimony from his expert, William Flynn, Ph.D. Dr. Flynn testified he reviewed Beckett’s medical records from Timberlawn Psychiatric Hospital, Green Oaks Hospital, and Terrell State Hospital. Dr. Flynn also interviewed Jason and Kimberly. Dr. Flynn testified Beckett believed he was “being persecuted or chased or threatened by the devil and evil things.” Dr. Flynn testified Beckett had “[d]elusions of persecution; being chased; being afraid of things that weren’t there; and religious delusions. God talking to him; giving him messages by writings in the snow. . . .” Dr. Flynn further testified that Beckett had delusions about good and evil, the devil and God, and God giving him frightening messages.
The proffered testimony of Jason and LaFlore addressed subjects that were also addressed by Beckett’s experts at trial. Upon examination of the record, we conclude that error, if any, in excluding the proffered testimony was harmless beyond a reasonable probability. We resolve Beckett’s first issue against him.
Second Issue-Expert Opinion Testimony
Beckett contends in his second issue that the trial court abused its discretion when it excluded testimony of Dr. Dartson as to the “significance of” Mellaril, a medication prescribed to Beckett during mental health treatment at Terrell State Hospital when Beckett was nine years of age, and when it sustained the State’s objection to Beckett’s request that Dr. Flynn comment on a report of Lisa K. Clayton, M.D., in which Dr. Clayton opined Beckett was sane at the time of the offense.
We review the trial court’s decision to admit or exclude evidence under an abuse of discretion standard. See Cameron v. State, 241 S.W.3d 15, 19 (Tex. Crim. App. 2007). A trial court abuses its discretion when its decision lies “outside the zone of reasonable disagreement.” Walters v. State, 247 S.W.3d 204, 217 (Tex. Crim. App. 2007).
To preserve a complaint that the court erroneously excluded evidence, the complaining party must bring forward a record indicating the nature of the evidence. See Guidry v. State, 9 S.W.3d 133, 153 (Tex. Crim. App. 1999). Unless the excluded evidence is apparent from the context of the record, the offering party must present a timely offer of proof or bill of exceptions. See Tex. R. Evid. 103(a)(2), (b); Guidry, 9 S.W.3d at 153. “Absent a showing of what such evidence would have been, or an offer of a statement concerning what the excluded evidence would show, nothing is presented for review.” Guidry, 9 S.W.3d at 153.
Beckett did not make an offer of proof or a formal bill of exceptions regarding whether, in Dr. Dartson’s opinion, there was any “significance of” Beckett being prescribed Mellaril during a hospitalization more than ten years before the offense, and if so, how it related to events on the day of the offense. Dr. Flynn’s opinion was that Beckett was insane at the time of the offense. The testimony of Dr. Flynn establishes that in Dr. Clayton’s report, she opined Beckett was not insane at the time of the offense. Beyond that, Beckett presented no offer of proof or bill of exceptions identifying what he expected to establish with the testimony of Dr. Flynn regarding the contents of the report of Dr. Clayton.
Because the record contains no offer of proof or bill of exceptions identifying the substance of the allegedly erroneously-excluded testimony, Beckett’s complaint in his second issue presents nothing for our review. SeeGuidry, 9 S.W.3d at 153. Accordingly, we resolve Beckett’s second issue against him.
Third Issue-Shifting the Burden to the State to Prove Beckett’s Sanity
On March 8, 2006, an Order of Protective Custody was signed by a Dallas County probate court, ordering Beckett involuntarily committed to Terrell State Hospital. Beckett argued at trial that the Order of Protective Custody established he was previously adjudicated insane and, therefore, the burden shifted to the State to prove Beckett’s sanity at the time of the offense. The trial court overruled Beckett’s objection to the instruction in the jury charge that the defendant had the burden of proof as to the affirmative defense of insanity.
In his third issue, Beckett asserts the trial court abused its discretion when it ruled that Beckett did not present sufficient evidence of insanity to justify shifting the burden to the State to prove sanity. Beckett asserts that the order for Beckett’s involuntary commitment to a state psychiatric hospital in 2006 was sufficient to justify shifting the burden to the State to prove Beckett was sane at the time of the 2009 offense. We disagree.
The general rule in Texas is that the prosecution is under no obligation to bring forward evidence that a defendant was sane at the time of an offense. Riley, 830 S.W.2d at 585; Madrid v. State, 595 S.W.2d 106, 111 (Tex. Crim. App. 1979). The defendant has the burden to prove his insanity at the time of the offense by a preponderance of the evidence. Tex. Penal Code Ann. § 2.04(d) (West 2011); see also Madrid, 595 S.W.2d at 111 (defense of insanity is affirmative defense as to which accused bears both burden of producing evidence and burden of persuasion). An exception to the general rule exists whenever insanity has been shown to exist by a prior unvacated adjudication of insanity. Manning v. State, 730 S.W.2d 744, 748 (Tex. Crim. App. 1987); see alsoArnold v. State, 873 S.W.2d 27, 30 (Tex. Crim. App. 1993) (burden of disproving insanity shifts to the State if there is a prior adjudication of insanity by a court of competent jurisdiction). When a defendant has been adjudicated insane, the presumption is that the insanity continues and the State has the burden to prove the accused’s sanity at the time of the offense beyond a reasonable doubt. Manning, 730 S.W.2d at 748-49.
Like Beckett’s hospitalization pursuant to the Order of Protective Custody, in Thompson v. State, 612 S.W.2d 925 (Tex. Crim. App. 1981), the defendant was hospitalized pursuant to orders styled “Order for Protective Custody.” Id. at 929. Also like Beckett, the defendant in Thompson was discharged from the hospitalization prior to commission of the offense at issue. 3Id. The court of criminal appeals noted the record did not reflect the defendant was ever adjudicated mentally incompetent and there was no evidence in the record of any adjudication of insanity that would place the burden of proof upon the State to show that the defendant was sane at the time of the offense. Id.
In Williams v. State, 643 S.W.2d 136 (Tex. Crim. App. 1982), the defendant filed a pre-trial notice of his intent to interpose the defense of insanity. The defendant complained on appeal that the trial court refused to admit into evidence a judgment of commitment, whereby the defendant was adjudged to be mentally ill and was committed to Terrell State Hospital for observation and treatment. Id. at 139. The court of criminal appeals stated it was apparent the defendant’s “purpose in having admitted into evidence the [prior] judgment of commitment was an effort to invoke the presumption of insanity, and thus place the burden of proof upon the State to show that he was sane at the time of the commission of the offense at Bar.” Id. The court of criminal appeals stated: Even assuming, for argument purposes, that the trial court was in error in its refusal to admit the document into evidence, which error we do not find, the document’s very terms do not indicate or reflect that appellant was adjudicated to be an insane person. Thus, even had the trial court admitted the document into evidence, it would not have been sufficient in itself to show that the appellant had been previously adjudged insane, and therefore entitled to the presumption that he was still insane at the time of the offense. Nor would the document’s admission into evidence have been sufficient to have placed the burden of proof upon the State to show that appellant was sane at the time of the offense.
In Morris v. State, 744 S.W.2d 290, 294 (Tex. App.-Corpus Christi 1987, pet. ref’d), the defendant asserted on appeal that the trial court erred when its jury charge did not place the burden of proof regarding the defendant’s sanity on the prosecution. The defendant argued that since a jury had previously found him incompetent to stand trial, the burden of proof shifted to the State to prove beyond a reasonable doubt that the defendant was sane at the time of the offense. Id. The court of appeals disagreed with the defendant’s contention stating, “The Texas Court of Criminal Appeals has clearly held that a finding of incompetency to stand trial does not constitute an adjudication of insanity.” Id. (citing Thompson v. State, 612 S.W.2d at 929). “In Manning, the Court of Criminal Appeals concluded that a prior finding of incompetency shifts the burden to the State only for incompetency, not insanity.” Id. at 294-95 (citing Manning, 730 S.W.2d at 748)); see also Olivier v. State, 850 S.W.2d 742, 749 (Tex. App.-Houston [14th Dist.] 1993, pet. ref’d) (proof of a mental disease or defect alone is not sufficient to establish an affirmative defense of insanity).
Here, there is no evidence in the record of any prior adjudication of insanity which would shift to the State the burden of establishing that Beckett was sane. Since we conclude that the burden of proof did not shift to the State, the trial court did not err by instructing the jury that the defendant had the burden of proof as to the affirmative defense of insanity. We resolve Beckett’s third issue against him.
Fourth Issue-Lack of Mens Rea
In his fourth issue, Beckett claims the trial court abused its discretion when it excluded evidence and argument relating to Beckett’s lack of mens rea. Beckett argues the trial court abused its discretion when it sustained the State’s objections to cross-examination questions posed to Detective Able Lopez of the Dallas Police Department Child Abuse Unit and when it sustained the State’s objections to Beckett’s arguments pertaining to the defense of lack of mens rea.
Beckett first complains that the trial court improperly sustained the State’s objections that questions posed during cross-examination of Detective Lopez on the issue of mens rea called for speculation on the part of the witness. The State contends Beckett did not preserve error in exclusion of the testimony. We agree.
An appellant may not urge error in the exclusion of evidence unless he perfected an offer of proof or a bill of exceptions. Guidry, 9 S.W.3d at 153; see also Tex. R. App. P. 33.1(a)(1)(B); Tex. R. Evid. 103(a)(2), (b). Beckett did neither. Absent a showing of what the excluded testimony would have been, or an offer of a statement concerning what the excluded evidence would show, an appellant presents nothing for review. Guidry, 9 S.W.3d at 153. Because Beckett presented no offer of proof or bill of exceptions, and the substance of what Detective Lopez’s answers would have been is not apparent, Beckett has waived any error regarding the trial court’s sustaining the State’s speculation objections to the questions posed to Detective Lopez.
Second, Beckett cites two instances in which the trial court restricted his defense counsel’s closing argument concerning the defense of lack of mens rea. We review a trial court’s ruling on objections to jury argument for an abuse of discretion. Montgomery v. State, 198 S.W.3d 67, 95 (Tex. App.-Fort Worth 2006, pet. ref’d).
In the first instance of jury argument cited by Beckett, his counsel argued: If [Beckett] believed what he did was wrong, then why was he so ready to tell the officer? Because you have to look at that at that time. Look at the photographs. If you had done that and you had known that you had done that, would you have been sitting in the room. . .
The trial court sustained the State’s objection that the argument “[put] the jury in the shoes of the Defendant.”
Courts have held as improper argument that asks the jury to stand in the shoes of a party. See e.g.Fambrough v. Wagley, 140 Tex. 577, 169 S.W.2d 478, 481-82 (Tex. 1943); World Wide Tire Co. v. Brown, 644 S.W.2d 144, 145-46 (Tex. App.-Houston [14th Dist.] 1982, writ ref’d n.r.e.). This is so because the jurors are being asked to consider the case from an improper viewpoint, Fambrough, 169 S.W.2d at 482, that is, from the perspective of an interested party as opposed to a neutral fact-finder. See Brandley v. State, 691 S.W.2d 699, 712 (Tex. Crim. App. 1985) (asking jurors to imagine how they would feel if they had lost a daughter improper argument because it was essentially a plea for abandonment of objectivity). We conclude the trial court did not abuse its discretion in sustaining the State’s objection to the jury argument asking the jury whether they would have been sitting in the interview room if they had inflicted the injuries shown on the autopsy photographs of Christopher.
Prior to jury argument, the trial court read the jury charge to the jury. The jury charge included the lesser-included offense of reckless bodily injury to a child fourteen years of age or younger. See Tex. Penal Code Ann. §§ 22.04(a), (e). A person acts recklessly “with respect to circumstances surrounding his conduct or the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the circumstances exist or the result will occur,” and “the risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor’s standpoint.” Tex. Penal Code Ann. § 6.03(c) (West 2011). See also Williams v. State, 235 S.W.3d 742, 751 (Tex. Crim. App. 2007) (“’[R]ecklessness’ and ‘criminal negligence’ represent different mens rea concepts . . . . [but they] have one component in common. Each requires conduct which represents a gross failure to measure up to the reasonable- person standard of care.”) (quoting Rollin M. Perkins and Ronald N. Boyce, Criminal Law 849, 850 (3d ed. 1982). Here, the jury was instructed with regard to the offense of reckless bodily injury to a child: A person acts “recklessly” or is “reckless” with respect to the results of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances, as viewed from the standpoint of the person charged.
In the second instance of jury argument cited by Beckett, his counsel argued:
So in order to get to [Beckett] knowing that it’s wrong, it has to be at a point where he desires, right; he has the conscious desire for it to be wrong. And at some point what the detectives said, what – he was – he should have known. And I said, “Well, you’re talking about based off of how you are as a person, or maybe as I am as a person, that you should have known.”
Well, what was it about him, other than the assumption that he was normal, that lead you to think that he should have known? Where’s the evidence of that?
The trial court sustained the State’s objection that the argument was a misstatement of the law pertaining to mens rea. The State objected that “as far as mens rea goes, it is [sic] objective standard, is what a reasonable person would have known.”
The defense counsel’s jury arguments at issue misstate the mens rea with regard to the lesser- included offense of recklessly injuring a child. We conclude the trial court did not abuse its discretion in sustaining the State’s objection to Beckett’s defense counsel’s arguments. Accordingly, having concluded the trial court did not abuse its discretion by excluding evidence or by sustaining the State’s objections to defense counsel’s jury argument relating to Beckett’s lack of mens rea, we resolve Becket’s fourth issue against him.
Fifth Issue-Instructing the Jury Regarding Detention
In his fifth issue, Beckett contends the trial court erred in denying his request to instruct the jury during the State’s direct examination of a witness that Beckett’s pre-trial detention was no evidence of guilt. Beckett claims the trial court’s failure to so instruct the jury deprived him of the presumption of innocence.
In the State’s rebuttal portion of the guilt/innocence phase of trial, the State questioned Officer Willie Rubalcado, who was employed by the Dallas County Sheriff’s Office at the jail facility where Beckett was incarcerated prior to and during trial. Officer Rubalcado testified he had come in contact with Beckett at the jail and that he had not seen Beckett “interact” with the medicine cart in the jail. After the State completed its questioning of Officer Rubalcado and passed him as a witness, Beckett’s defense counsel made the following request to the trial court: “Judge, we request a limited [sic] instruction, as it relates to this witness’s testimony, that the jury cannot consider confinement of Mr. Beckett as any evidence of his guilt.” The trial court denied the request but explained to the jury, “Because I’m denying [defense counsel's] request doesn’t mean I’m saying the opposite is true. There’s no instruction in the law as he’s asked. So, that’s why I’m denying the request.”
The record reflects that prior to Officer Rubalcado’s testimony, Beckett’s counsel elicited testimony from his defense expert, Dr. Dartson, that she had interviewed Beckett in jail. The following day, and in advance of Officer Rubalcado’s testimony, Dr. Dartson was cross-examined by the State’s counsel, at which time she again testified she had interviewed Beckett in jail. Beckett did not request a limiting instruction from the trial court at the time he elicited testimony from Dr. Dartson, or when Dr. Dartson testified during cross-examination, that she interviewed Beckett in jail.
The party opposing evidence has the burden of objecting and requesting a limiting instruction at the time the evidence is admitted. Hammock v. State, 46 S.W.3d 889, 892, 894 (Tex. Crim. App. 2001); see also Tex. R. Evid. 105(a) (“When evidence which is admissible . . . for one purpose but not admissible . . . for another purpose is admitted, the court, upon request, shall restrict the evidence to its proper scope and instruct the jury accordingly; but, in the absence of such request the court’s action in admitting such evidence without limitation shall not be a ground for complaint on appeal.”).
We are unpersuaded by Beckett’s complaint that the trial erred by failing to give the requested limiting instruction to the jury. Beckett has cited to no authority, and we have located none, to support an argument that the trial court had a duty to give the jury a limiting instruction in the absence of a request for the instruction the first time the evidence was admitted at trial. See Delgado v. State, 235 S.W.3d 244, 251 (Tex. Crim. App. 2007) (“[I]f a defendant does not request a limiting instruction under Rule 105 at the time that the evidence is admitted, then the trial judge has no obligation to limit the use of that evidence later in the jury charge.”). Moreover, after defense counsel’s request for a limiting instruction following Officer Rubalcado’s testimony, the trial court instructed the jury that denial of the request did not mean the opposite was true, meaning denial of the limiting instruction did not mean the jury could consider Beckett’s confinement as evidence of his guilt. The trial court’s instruction was sufficient to nullify the tendency, if any, of the jury to infer Beckett’s pre-trial detention was evidence of guilt, and error, if any, was otherwise rendered harmless by the trial court’s instruction.
Beckett further contends on appeal that the jury charge did not impose the procedural protections needed to ensure the presumption of innocence. Beckett states he was harmed by the omission in the jury charge of a statement that Beckett’s detention is no evidence of guilt. When reviewing a trial court’s jury instructions, we first determine whether the jury charge was erroneous. Nguyen v. State, 811 S.W.2d 165, 167 (Tex. App.-Houston [1st Dist.] 1991, pet. ref’d). Error occurs when a jury charge fails to properly apply the law to the facts. Harris v. State, 522 S.W.2d 199, 202 (Tex. Crim. App. 1975). An erroneous jury charge does not result in the automatic reversal of a conviction. Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Not only must there be error, but there must also exist a resulting harm that requires reversal. Id. “The standard to determine whether sufficient harm resulted from the charging error to require reversal depends upon whether appellant objected.” Abdnor v. State, 871 S.W.2d 726, 732 (Tex. Crim. App. 1994); see also Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007) (defendant “shall present his objections [to the court's written charge] in writing, distinctly specifying each ground of objection”); Tex. Code Crim. Proc. Ann. art 36.19 (West 2006) (providing for review of charge on appeal and stating, “All objections to the charge . . . shall be made at the time of the trial.”). When a party does not object to the court’s charge, we may not reverse unless the error was so egregious and created such harm that the party was denied a fair and impartial trial. See Almanza, 686 S.W.2d at 171.
The Legislature has codified the presumption of innocence in the penal code and the code of criminal procedure. Section 2.01 of the penal code and article 38.03 of the code of criminal procedure provide: All persons are presumed to be innocent and no person may be convicted of an offense unless each element of the offense is proved beyond a reasonable doubt. The fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.
Tex. Penal Code Ann. § 2.01 (West 2011); Tex. Code Crim. Proc. Ann. art. 38.03 (West Supp. 2011). Code of criminal procedure article 36.14 states that the trial court must “deliver to the jury . . . a written charge distinctly setting forth the law applicable to the case. . . .” Tex. Code Crim. Proc. Ann. art. 36.14. Article 36.15 of the code of criminal procedure provides that parties may “present written instructions and ask that they be given to the jury.” Tex. Code Crim. Proc. Ann. art. 36.15 (West 2006). “However, nothing in articles 36.14 or 36.15 requires a trial court to give an instruction on the presumption of innocence.” Gigliobianco v. State, 179 S.W.3d 136, 144 (Tex. App.-San Antonio, 2005), aff’d, 210 S.W.3d 637 (Tex. Crim. App. 2006); see also Carr v. State, 600 S.W.2d 816, 818 (Tex. Crim. App. 1980) (declined to hold that jury charge that failed to track the language of section 2.01 is fundamental error).
A jury charge that substantially complies with article 2.01 protects a defendant’s rights. In Sweaney v. State, 632 S.W.2d 932 (Tex. App.-Fort Worth 1982, no pet.), the appellant asserted the instructions in the jury charge should have included the verbatim text of penal code section 2.01. The court’s charge in Sweaney included the following instructions: You are instructed that the Grand Jury Indictment is no evidence of guilt. It is merely the means whereby the defendant is brought to trial in a felony prosecution. It is not evidence nor can it be considered by you in passing upon the innocence or guilt of this defendant.
In all criminal cases the defendant is presumed innocent, and the burden of proof is upon the State of Texas to establish his guilt by legal and competent evidence to the satisfaction of the jury beyond a reasonable doubt; and, if in this cause you have a reasonable doubt as to the guilt of the defendant, you will acquit him and say by your verdict “Not Guilty.”
Id. at 934. The Fort Worth Court of Appeals held that the court’s charge was substantially similar to the language of section 2.01 and properly instructed the jury on the presumption of innocence and that the indictment supplies no inference of guilt. Id. at 935. See also DeRusse v. State, 579 S.W.2d 224, 234 (Tex. Crim. App. 1979). In DeRusse, the appellant’s requested jury charge included the language from penal code section 2.01 that “[t]he fact that he has been arrested, confined, or indicted for, or otherwise charged with, the offense gives rise to no inference of guilt at his trial.” The charge the trial court submitted to the jury did not contain that language from section 2.01. Id. The Court of Criminal Appeals stated that the “charge given by the trial court was substantially similar to that requested by appellant and adequately protected appellant’s rights with regard to the matters contained therein.” Id. Citing penal code section 2.01 and code of criminal procedure article 38.03, the Court of Criminal Appeals held that the trial court did not err in refusing the requested charge. Id. In Knorpp v. State, 645 S.W.2d 892, 903 (Tex. App.-El Paso 1983, no pet.), relying upon penal code section 2.01, the appellant objected to the trial court’s failure in the jury charge to specifically state that each element of the offense must be proven beyond a reasonable doubt. The appellate court stated that “[t]he language found in the Penal Code is certainly the preferred explanation of the presumption of innocence and the State’s burden.” Id. However, citing DeRusse, the court concluded that the manner in which the jury was instructed has been held to provide adequate protection of the defendant’s rights. Id. (citing DeRusse, 579 S.W.2d at 224). See also State v. Toney, 979 S.W.2d 642, 644-45 (Tex. Crim. App. 1998) (if jury is given a partial or substantially correct charge on reasonable doubt, then any error therein is subject to a harm analysis under Abdnor, Almanza, and code of criminal procedure article 36.19).
Here, the trial court’s jury charge included the following instructions: It is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof excludes all reasonable doubt concerning the defendant’s guilt.
In the event you have a reasonable doubt as to the defendant’s guilt after considering all the evidence before you, and these instructions, you will acquit the defendant and say by your verdict “not guilty.” If you have a reasonable doubt as to whether the defendant is guilty of any offense in this charge, you will acquit the defendant and say by your verdict “Not Guilty.”
You are further instructed that an indictment is no evidence of guilt. Therefore, you are instructed in this case that the indictment herein shall not be considered by the jury as any evidence of guilt, if any.
Examining the charge submitted by the trial court, we do not conclude that the charge failed to provide adequate protection of Beckett’s rights. SeeGigliobianco, 179 S.W.3d at 144. However, assuming the trial court erred in submitting a “partial or substantially correct charge” that did not include an instruction that the fact that Beckett had been confined gave rise to no inference of his guilt, we conclude Beckett was not egregiously harmed. Because Beckett failed to object on the basis that the charge did not contain the desired instruction, we consider whether Beckett suffered egregious harm. See Almanza, 686 S.W.2d at 171. To establish egregious harm, “the record must show that a defendant has suffered actual, rather than merely theoretical, harm from jury instruction error.” Ngo v. State, 175 S.W.3d 738, 750 (Tex. Crim. App. 2005). Errors that result in egregious harm are those that affect “the very basis of the case, deprive the defendant of a valuable right, or vitally affect a defensive theory.” Id. (citation omitted). We assay the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the trial record. Almanza, 686 S.W.2d at 171.
Here the jury charge included the instruction that the jury could find Beckett guilty only if it believed the evidence excludes all reasonable doubt concerning Beckett’s guilt. The charge also contained language indicating that the jury could not consider Beckett’s choice to not testify, evidence not introduced at trial, or the indictment as evidence of guilt.
The testimony of Officer Rubalcado regarding his observations of Beckett in jail was brief and comprised only four pages of hundreds of pages of trial testimony in the reporter’s record. Further, nothing in the record shows there was any contention or argument that Beckett’s confinement was evidence of his guilt. Beckett does not claim otherwise in his argument on appeal. See Aston v. State, 656 S.W.2d 453, 457 (Tex. Crim. App. 1983) (“There is nothing in the record to show that there was any insistence that appellant’s arrest, confinement, indictment or other charges were evidence of his guilt. No issue was made of the matter during trial, and appellant does not claim otherwise.”); see also Crane v. State, 57 Tex. Crim. 476, 123 S.W. 422, 422-23 (Tex. Crim. App. 1909) (where it did not appear that there was insistence before the jury that the indictment should be regarded by them as evidence of guilt, it was not error to refuse a charge that the indictment is no evidence of guilt).
During voir dire, the trial court referenced the presumption of innocence several times, including the following: All right. I think I was on the presumption of innocence. The law says that the presumption of innocence, alone, is enough to acquit the Defendant. At the beginning of the trial, the Defendant is presumed to be innocent and unless and until the State proves his guilt beyond a reasonable doubt, then the jury is duty-bound to find the Defendant not guilty of the charges.
The State, too, referenced the presumption of innocence in voir dire.
The weight of the evidence at trial was sufficient for the jury to have found Beckett guilty of intentionally and knowingly causing serious bodily injury to Christopher. The evidence was overwhelming that Beckett caused Christopher’s injuries, that those injuries were serious, and that Beckett intentionally and knowingly caused those injuries. In the videotape interview of Beckett admitted in evidence, he graphically described and demonstrated the beating of Christopher with his hands, a leather belt, and a fabric belt over several days and the description of what occurred when Beckett put Christopher in the bath. In the videotape interview, Beckett stated that he did not think that what he had done to Christopher and the bruises he inflicted on Christopher were “okay” and that he had gone “overboard” in what he characterized as “punishment” of Christopher. He stated he had concern over the severity of the marks the leather belt was making on Christopher, so he switched to whipping Christopher with a fabric belt, even turning that belt over to use the other side because one side was leaving marks on Christopher. Beckett conducted internet research on bruising and how long it would last. Beckett stated he had beaten Christopher until he thought he could not beat him anymore, and that he hit Christopher in the stomach because Christopher was fighting him. He acknowledged that he caused the bruises on Christopher’s chest, face, legs, back, and buttocks, stating he made all the marks on Christopher’s body other than one mark on Christopher’s face. Trial testimony indicated that Erica had kept Christopher home from school on the day of his death because of the bruising, and that the day before his death Erica cried and asked Beckett to stop whipping Christopher. Medical testimony established the injuries Christopher sustained (extensive contusions or bruises and scrapes over the entire surface of his body) were indicative of blunt force trauma and significant force was required to inflict the injuries, as demonstrated by the fact such force caused Christopher’s muscles to bleed.
After an examination of the entire record and the trial court’s entire charge, we conclude Beckett was not egregiously harmed by error, if any, in the jury charge not containing an instruction that pre-trial confinement does not give rise to an inference of guilt. Having also concluded the trial court did not err by failing to give Beckett’s requested limiting instruction to the jury following Officer Rubalcado’s testimony on direct examination concerning his contact with Beckett in jail, we resolve Beckett’s fifth issue against him.
Sixth Issue-Due Process Right to Present a Defense
In his sixth issue, Beckett contends the trial court violated his due process right to present a defense. Beckett contends that the errors he asserts in his first five issues on appeal, “viewed as a whole,” resulted in a denial of his right to present a defense and he was, therefore, denied due process. Having concluded there was no error or no harm in resolving Beckett’s issues against him, we reject the basis of his sixth issue and resolve it against him as well. See Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999) (“[W]e are aware of no authority holding that non- errors may in their cumulative effect cause error.”); see also Rayford v. State, 125 S.W.3d 521, 534 (Tex. Crim. App. 2003) (citing Chamberlain, 998 S.W.2d at 238, for proposition that “non-errors may not in cumulative effect cause error”). 4 Accordingly, no cumulative error is shown, and we resolve Beckett’s sixth issue against him.
Having resolved Beckett’s six issues against him, we affirm the trial court’s judgment.
ROBERT M. FILLMORE
Do Not Publish
Tex. R. App. P. 47
Court of Appeals
Fifth District of Texas at Dallas
ANTHONY BECKETT, Appellant
THE STATE OF TEXAS, AppelleeAppeal from the Criminal District Court No. 1 of Dallas County, Texas. (Tr.Ct.No. F09- 50410-H).
Opinion delivered by Justice Fillmore, Justices Bridges and O’Neill participating.
Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.
Beckett does not challenge the sufficiency of the evidence. We will dispense with a recitation of any facts unnecessary to the resolution of the issues under consideration in this appeal. Footnote 2
Although in his argument on this issue Beckett references the lay testimony of Kimberly concerning his specific instances of conduct, he cites no instance about which Kimberly was not permitted to testify before the jury. At trial, Beckett did not proffer testimony Kimberly would have provided that was excluded by the trial court. Footnote 3
The record in this case contains a Certificate of Discharge pursuant to mental health code section 574.087, whereby Terrell State Hospital informed the probate court that Beckett, “admitted to said facility for inpatient mental health services,” was discharged on March 27, 2006. See Tex. Health & Safety Code Ann. § 574.086(a) (West 2010) (facility administrator of a facility to which a patient was committed for inpatient mental health services may discharge the patient at any time before the court order expires if the facility administrator determines that the patient no longer meets the criteria for court-ordered mental health services). Footnote 4
See also Underwood v. State, No. 05-06-01589-CR, 2008 WL 3117077, at *11 (Tex. App.-Dallas Aug. 7, 2008, no pet.) (not designated for publication) (because this Court “found either no error or no harm in resolving [appellant's] issues against her,” this Court rejected appellant’s contention that the cumulative effect of the errors warranted reversal).