                                  NO. 07-06-0237-CR

                             IN THE COURT OF APPEALS

                      FOR THE SEVENTH DISTRICT OF TEXAS

                                     AT AMARILLO

                                        PANEL C

                                  JULY 26, 2007
                         ______________________________

                            SIMON PARTIDA, APPELLANT

                                            V.

                         THE STATE OF TEXAS, APPELLEE
                       _________________________________

              FROM THE 50TH DISTRICT COURT OF COTTLE COUNTY;

                   NO. 2822; HONORABLE W. H. HEATLY, JUDGE
                        _______________________________


Before QUINN, C.J., and HANCOCK and PIRTLE, JJ.


                                        OPINION


      Appellant, Simon Partida, appeals from his conviction for aggravated assault of a

public servant, and jury assessed punishment of confinement in the Texas Department of

Criminal Justice–Institutional Division for 45 years. We affirm.


                                       Background


      During a “Father’s Day” dinner in 2004, appellant consumed an extensive amount

of alcohol and began arguing with his wife. At approximately 6:55 pm, appellant’s wife ran
across the street to a neighbor’s home in an agitated state requesting that someone call

911. As the call was being made, appellant stepped outside his door and fired a rifle up

into the air. Chief of Police Robert McGuire answered the 911 call. As the Chief got out

of his car and started toward the home of appellant, he heard a gunshot. The Chief then

sought cover behind a car that was parked across the street from appellant’s home.

Another shot was fired, and the Chief heard a tire go flat on the car he was hiding behind.

A deputy from the sheriff’s office arrived on the scene and took cover behind the Chief’s

car. Subsequently, appellant surrendered to the deputy. After being taken to jail, appellant

admitted to the deputy that he knew the Chief was across the street when he fired his rifle

in his direction.


       Upon the conclusion of the guilt-innocence phase of appellant’s trial, the trial court

charged the jury on the offense of aggravated assault of a public servant and the lesser

included offense of deadly conduct by discharging a firearm at or in the direction of an

individual, habitation, or vehicle. However, the trial court refused appellant’s request to

charge the jury on the misdemeanor charge of deadly conduct. After the jury convicted

appellant of the charged offense of aggravated assault of a public servant, the jury heard

evidence regarding appellant’s prior felony conviction. However, while examining its third

witness during the punishment stage of the trial, the State realized it had not read the

enhancement portion of the indictment, nor had appellant pleaded to the enhancement

portion of the indictment. Over appellant’s objection, the trial court allowed the State to

read the enhancement paragraph and accepted appellant’s plea of not true to the

enhancement paragraph. The jury returned a verdict of confinement for 45 years.


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       By six contentions, appellant presents three issues on appeal: 1) that the evidence

was factually insufficient to prove the elements of the offense, 2) the trial court committed

reversible error by refusing appellant’s requested charge on the misdemeanor offense of

deadly conduct, and 3) the trial court committed reversible error when it allowed the State

to read the enhancement portion of the indictment after having received evidence from

three witnesses and that procedure was a denial of due process and equal protection

under the law.


                                     Factual Sufficiency


       When an appellant challenges the factual sufficiency of the evidence supporting his

conviction, the reviewing court must determine whether, considering all the evidence in a

neutral light, the jury was rationally justified in finding appellant guilty beyond a reasonable

doubt. See Watson v. State, 204 S.W.3d 404, 415 (Tex.Crim.App. 2006). In performing

a factual sufficiency review, we are to give deference to the fact finder’s determinations if

supported by the record and may not order a new trial simply because we may disagree

with the verdict. See id. at 417. As an appellate court, we are not justified in ordering a

new trial unless there is some objective basis in the record demonstrating that the great

weight and preponderance of the evidence contradicts the jury’s verdict.               See id.

Additionally, an appellate opinion addressing factual sufficiency must include a discussion

of the most important evidence that appellant claims undermines the jury’s verdict. Sims

v. State, 99 S.W.3d 600, 603 (Tex.Crim.App. 2003).




                                               3
       Appellant alleges that the evidence is factually insufficient as to two particular

elements of the offense. First, whether appellant knew that the Chief was present when

he fired the gun and secondly, whether appellant knew that the Chief was acting in his

official capacity at the scene.


       A review of the record reveals that every witness that testified stated the Chief was

in his uniform of black pants, white shirt, and that he had a distinctive badge on the front

of the shirt. Further, all witnesses testified that the Chief arrived in a gold colored car that

was clearly marked as “Police.” Additionally, one witness, Mr. Nipp, testified that he heard

appellant using the word “nigger” after the shots were fired. The record reflects that the

Chief is African-American. Also to be considered is the testimony of the deputy regarding

appellant’s admission that he knew the Chief was there when he fired his rifle in the Chief’s

direction. Upon considering all of the evidence in a neutral light, we cannot say that the

jury was not rational in finding appellant guilty of the offense of aggravated assault of a

public servant. Watson, 204 S.W.3d at 415.


       Appellant’s contention is that only Nipp’s testimony shows that appellant knew that

the Chief was present, and this testimony was contradicted by testimony of other

witnesses. Even if appellant is factually correct, which the record indicates he is not, the

jury has the responsibility of resolving conflicts in the testimony. See Johnson v. State, 23

S.W.3d 1, 8 (Tex.Crim.App. 2000). If supported by the record, we must give deference to

the findings of the jury. Watson, 204 S.W.3d at 417. By their verdict, the jury has rejected

appellant’s argument. Appellant’s first issue is overruled.



                                               4
                 Lesser Included Charge of Misdemeanor Deadly Conduct


       Appellant’s next issue contends that the trial court committed reversible error by not

giving a lesser included charge on the offense of misdemeanor deadly conduct. The

record reveals that the trial court gave a jury charge on aggravated assault of a public

servant. TEX . PEN . CODE ANN . § 22.02 (Vernon Supp. 2004).1 The court also gave a lesser

included offense charge on deadly conduct, a third degree felony. § 22.05(b)(1), (2).

However, appellant requested an additional charge on the lesser included offense of

misdemeanor deadly conduct. § 22.05(a). The court refused this request.


       Assuming without deciding that appellant was entitled to the requested instruction

on misdemeanor deadly conduct, we must determine if the error was harmful. The

standard of review for error in this particular matter is Rule 44.2(b) of the Texas Rules of

Appellate Procedure. TEX . R. APP. P. 44.2(b). Therefore, to be reversible, the error must

affect a substantial right of appellant. Id. An error affects a substantial right of appellant

when the error has a substantial and injurious effect or influence in determining the jury’s

verdict. See King v. State, 953 S.W.2d 266, 271 (Tex.Crim.App. 1997).


       A jury’s failure to find appellant guilty of an intervening lesser included offense, i.e.

an offense between the requested lesser included offense and the charged offense, may

render the trial court’s failure to give the requested charge harmless. Masterson v. State,

155 S.W.3d 167, 171 (Tex.Crim.App. 2005). The harm from denying a lesser offense

instruction stems from the potential to place the jury in the dilemma of convicting for a


       1
           Further reference to the Texas Penal Code will be by reference to § __.

                                               5
greater offense in which the jury has reasonable doubt or releasing a person entirely from

criminal liability. Id. An intervening lesser included offense is an available compromise,

giving the jury the ability to hold a wrongdoer accountable without having to find him guilty

of the charged (greater) offense. Id. A court can conclude that an intervening offense

instruction renders a trial court’s refusal to include a lesser included offense instruction

harmless if the jury rejects the opportunity to convict a defendant of the intervening

offense. Id. A jury’s refusal to convict a defendant of the intervening offense legitimately

indicates that the jury believed that the defendant was guilty of the greater, charged

offense. Id. at 171-72.


       In the case before us, the jury was charged on the intervening lesser included

offense of deadly conduct, a third degree felony. Therefore, the jury had the ability to

convict appellant of a lesser included offense had they any reservation about appellant’s

guilt of the greater, charged offense. The jury rejected this opportunity. Additionally, the

record reveals that the jury was charged on a range of punishment of 15 years

incarceration to life imprisonment if they found that the enhancement allegation was true.

Rather than give the minimum of 15 years, the jury sentenced appellant to 45 years

showing that the jury believed appellant was guilty of the greater offense instead of a lesser

included offense. See Campos v. State, No. 05-05-00492-CR, 2006 WL 1461155, at *3

(Tex.App.–Dallas May 30, 2006, pet. ref’d) (not designated for publication) (jury’s action

in assessing punishment, more than the minimum sentence, is indicative of an intent to

punish appellant for greater offense). Accordingly, we conclude that, if the trial court did




                                              6
commit an error in refusing to include a lesser included offense charge for misdemeanor

deadly conduct, any such error was harmless.


                  Irregular Presentment of an Enhancement Paragraph


       Through three issues, appellant contends that the trial court committed reversible

error by allowing the State to read the enhancement paragraph of the indictment after three

witnesses had testified. The record reveals that, after the verdict of guilty was returned by

the jury, the trial court recessed the jury until 9:00 a.m. the following morning. The trial

court immediately began conducting the proceedings without either an announcement of

ready by either party or a reading of the enhancement portion of the indictment by the

State. The State proceeded to have two witnesses testify about appellant’s reputation for

being a “peaceable and law-abiding citizen.” During direct examination of the third witness,

the State realized that the enhancement portion of the indictment had not been read. The

State immediately approached the bench and informed the court of the matter. The jury

was retired and the matter discussed by the attorneys and the judge. Appellant objected

to the State being allowed to read the enhancement portion of the indictment at that time.

The objection was overruled, and the jury returned to the courtroom. The enhancement

portion of the indictment was read, and appellant pleaded not true to the allegation. The

State re-offered the previous testimony and completed the examination of the third

witness.


       Appellant candidly admits that he has not found cases on point, but suggests that

Turner v. State be considered for the proposition that the reading of the enhancement


                                             7
allegations and an appellant’s plea thereto are mandatory. Turner v. State, 897 S.W.2d

786, 789 (Tex.Crim.App. 1995). The State, citing Linton v. State and Hernandez v. State,

contends that the failure to read the enhancement paragraph before commencing

testimony is subject to a harmless error analysis. Linton v. State, 15 S.W.3d 615, 620

(Tex.App.–Houston [14th Dist.] 2000, pet. ref’d); Hernandez v. State, 190 S.W.3d 856, 868

(Tex.App.–Corpus Christi 2006, no pet.).


       In Turner, the Court of Criminal Appeals considered whether the total failure to read

the enhancement paragraph and the failure to ever require the defendant to enter a plea

could be subject to a harmless error analysis. The court decided that it could not be

subject to a harmless error analysis and reversed the decision of the appellate court.

Turner, 897 S.W.2d at 789. However, at footnote 5 of the opinion, the court noted that

when the State discovers its failure to read the enhancement paragraph, the State can

cure its error by reading the enhancement paragraph, having the defendant plead to it, and

reintroducing the evidence. Id. at 789 n.5, citing Warren v. State, 693 S.W.2d 414, 416

(Tex.Crim.App. 1985).     This is exactly what the State elected to do.         Accordingly,

appellant’s fourth, fifth and sixth issues are overruled.


                                        Conclusion


       Having overruled all of appellant’s issues the judgment of the trial court is affirmed.



                                                  Mackey K. Hancock
                                                       Justice

Publish.

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