Opinion filed May 19, 2016




                                       In The


        Eleventh Court of Appeals
                                     __________

                              No. 11-14-00124-CR
                                     __________

                ROBERT ELESTER LATHAM, Appellant
                              V.
                  THE STATE OF TEXAS, Appellee

                    On Appeal from the 104th District Court
                            Taylor County, Texas
                        Trial Court Cause No. 18793B

                     MEMORANDUM OPINION
      Robert Elester Latham appeals his jury conviction for aggravated assault.
The trial court made an affirmative deadly weapon finding and sentenced Appellant
to confinement for life in the Institutional Division of the Texas Department of
Criminal Justice. In three issues on appeal, Appellant asserts that (1) the trial court
erred when it proceeded to trial without first considering and ruling on Appellant’s
competency to stand trial, (2) the trial court erred when it denied Appellant’s
requests for a mistrial based on an out-of-court conversation between a State’s
witness and a juror, and (3) the evidence was insufficient to support the jury’s verdict
of guilty. We modify the judgment of the trial court to correct a clerical error and
affirm as modified.
                                Background Facts
      Around 10:00 or 11:00 a.m. on October 29, 2012, Appellant arrived for a
social visit at Connal Jennings’s apartment. In addition to Jennings, two other
people were present in the apartment when Appellant arrived: Raimee Brown and
Wayland Buddy Bailey. Brown testified that she, Appellant, Jennings, and Bailey
all smoked methamphetamine together that morning.
      Sometime before noon, Brown was stabbed in the back and arm while she was
sitting on the couch. However, no one actually saw the stabbing occur, including
Brown. Speakers and a keyboard piano divided the one-room apartment down the
middle. A computer and chairs were on one side of the keyboard, and a couch,
television, and more chairs were on the other side. Brown was sitting on the couch
with her laptop computer and was listening to music on YouTube. Appellant was
sitting on the couch with Brown. On the other side of the room, Jennings was sitting
in front of the computer, and Bailey was standing behind him looking at the
computer screen.
      Brown testified that she had leaned forward with her eyes closed and that, the
next thing she knew, Appellant was straddling her. She also testified that she could
feel blood gushing out of her back and arm and that she saw a knife in Appellant’s
hand while he was straddling her. Jennings stood up and said to Appellant: “Hey,
what the f--k are you doing?” Appellant replied: “I thought this is what you wanted
me to do.” Jennings then forcibly removed Appellant from the apartment and called
9-1-1. Paramedics arrived and took Brown to the hospital, and Jennings gave a
statement to the police.
      A warrant was issued for Appellant’s arrest, and on October 30, Appellant
was spotted walking down the street by Officer Jake Weise of the Abilene Police
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Department. Appellant ran, but Officer Weise caught him. Officer Weise arrested
Appellant, searched him, and found a knife. The knife was sent to a forensic lab for
testing. DNA testing of blood found on the knife matched a DNA sample taken from
Brown.
       Dr. Steven Wallace Brown, a physician familiar with Brown’s injuries,
testified that Brown suffered from Brown-Sequard Syndrome because of the stab
wound to her upper back. Dr. Brown also testified that Brown’s spinal cord had
been bruised and that the injury would cause abnormalities in the ability to move,
feel pain sensations, and feel temperature sensations in the lower extremities. Brown
testified that she was initially unable to move her lower extremities, and although
she still had no feeling in her right leg at the time of trial, she had regained the ability
to walk.
                                         Analysis
       In his third issue, Appellant challenges the sufficiency of the evidence to
support his conviction for aggravated assault. We review a sufficiency of the
evidence issue under the standard of review set forth in Jackson v. Virginia, 443 U.S.
307 (1979). Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v.
State, 337 S.W.3d 286, 288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the
Jackson standard, we review all of the evidence in the light most favorable to the
verdict and determine whether any rational trier of fact could have found the
elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319;
Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). When conducting a
sufficiency review, we consider all the evidence admitted at trial, including pieces
of evidence that may have been improperly admitted. Winfrey v. State, 393 S.W.3d
763, 767 (Tex. Crim. App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim.
App. 2007). We defer to the factfinder’s role as the sole judge of the witnesses’
credibility and the weight their testimony is to be afforded. Brooks, 323 S.W.3d at
                                             3
899. This standard accounts for the factfinder’s duty to resolve conflicts in the
testimony, to weigh the evidence, and to draw reasonable inferences from basic facts
to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235 S.W.3d at 778. When the
record supports conflicting inferences, we presume that the factfinder resolved the
conflicts in favor of the verdict and defer to that determination. Jackson, 443 U.S.
at 326; Clayton, 235 S.W.3d at 778.
      The jury convicted Appellant of aggravated assault as charged in the second
paragraph of the indictment, which charged Appellant with intentionally and
knowingly causing serious bodily injury to Brown by stabbing her “on and about the
back and shoulder” with a knife. A person commits the offense of assault if that
person intentionally, knowingly, or recklessly causes bodily injury to another
person. TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2015). As relevant to
this case, the offense becomes aggravated assault if that person commits the offense
of assault that causes serious bodily injury. Id. § 22.02(a)(1) (West 2011). We note
at the outset that Appellant does not challenge the degree of injury suffered by
Brown as a result of being stabbed.
      Appellant premises his sufficiency challenge on the assertion that no direct
evidence was presented that he was the assailant, and he argues that no evidence was
offered to exclude the possibility that Brown was actually assaulted by one of the
other two people in the room. Although Jennings and Bailey were present in the
room when Brown was stabbed, no one testified that they actually saw Appellant
stab Brown or heard any altercation prior to the stabbing. Further, Appellant asserts
that the DNA recovered from the knife was not compared to DNA samples from
Bailey or Jennings to determine whether one of them could have been the assailant.
      Despite Appellant’s assertions, the State did not have the burden of disproving
that Bailey or Jennings was the assailant. See Merritt v. State, 368 S.W.3d 516, 525
(Tex. Crim. App. 2012). While no one witnessed the actual stabbing, Brown
                                         4
testified that, when she opened her eyes after she was stabbed, Appellant was on top
of her. Jennings also testified that he looked over when he heard Brown scream and
saw that Appellant was on top of Brown. As noted previously, Jennings testified
that he immediately confronted Appellant about stabbing Brown and that Appellant
replied, “I thought this is what you wanted me to do.” When Appellant was arrested
after the stabbing, he was found to be in possession of a knife with blood on it. DNA
extracted from the knife matched a sample taken from Brown. The circumstantial
evidence presented by the State was probative of Appellant’s guilt. Viewing the
evidence in the light most favorable to the verdict, we conclude that a rational trier
of fact could have found the elements of aggravated assault beyond a reasonable
doubt. We overrule Appellant’s third issue.
      In his first issue, Appellant asserts that the trial court committed reversible
error by proceeding to trial without first considering and ruling on Appellant’s
competency to stand trial. We review issues involving competency determinations
for an abuse of discretion. Montoya v. State, 291 S.W.3d 420, 426 (Tex. Crim. App.
2009). The conviction of an accused person while he is legally incompetent to stand
trial violates due process. See McDaniel v. State, 98 S.W.3d 704, 709 (Tex. Crim.
App. 2003); Iniquez v. State, 374 S.W.3d 611, 614 (Tex. App.—Austin 2012, no
pet.). “A defendant is presumed competent to stand trial and shall be found
competent to stand trial unless proved incompetent by a preponderance of the
evidence.” TEX. CODE CRIM. PROC. ANN. art. 46B.003(b) (West 2006). A person
can be considered incompetent if (1) they do not have sufficient present ability to
consult with their lawyer with a reasonable degree of understanding or (2) they do
not have a rational and factual understanding of the proceedings. Id. art. 46B.003(a).
      The procedure by which a trial court determines competency is set out in
Chapter 46B of the Texas Code of Criminal Procedure. Id. ch. 46B (West 2006 &
Supp. 2015). “This determination involves a two-step process: first, an informal
                                          5
‘competency inquiry’; and second, if applicable, a mandatory ‘competency
examination’ and formal ‘competency hearing.’” Iniquez, 374 S.W.3d at 615. In
the first step, the trial court conducts an informal inquiry, known as a competency
inquiry, to determine whether there is some evidence from any source that would
support a finding that the defendant may be incompetent to stand trial. Id. If the
trial court determines that such evidence exists, the court proceeds to the second
step, at which time the court must order a psychological examination to determine
whether the defendant is competent to stand trial. Id. In addition, the court generally
must conduct a formal trial, known as a “competency hearing,” in which a factfinder
determines “whether the defendant is incompetent to stand trial on the merits.” Id.
      Appellant premises his first issue on the contention that the trial court
proceeded to trial without considering the matter of his competency despite the fact
that the trial court had previously entered an order requiring Appellant to be
examined for competency. On November 29, 2012, Appellant’s trial counsel filed
a pre-indictment request to have a mental health evaluation conducted to determine
Appellant’s competency to stand trial. On December 3, 2012, the trial court entered
an “Order for Psychiatric Examination” for Jason D. Dunham, Ph.D. to examine
Appellant. However, the record initially filed in this appeal did not reflect that any
additional competency proceedings occurred.
      After Appellant filed his brief, the State requested the preparation of a
supplemental clerk’s record. The supplemental clerk’s record that was subsequently
filed contains a written psychological evaluation prepared by Dr. Dunham pursuant
to the trial court’s order. As per his report, Dr. Dunham evaluated Appellant on
December 12, 2012. He determined that Appellant was competent to stand trial.
Accordingly, Appellant’s assertion that no further proceedings related to
competency occurred in the trial court is incorrect.


                                          6
        As we have noted, Appellant’s trial counsel filed a pre-indictment
request to have a mental health examination performed on Appellant. The trial court
granted the request by entering an order providing for Appellant to be evaluated by
a mental health professional. Dr. Dunham promptly evaluated Appellant and filed a
report with the court wherein he determined that Appellant was competent to stand
trial. Appellant did not request a competency hearing at any time. Furthermore, he
did not present the trial court with any evidence of incompetency to stand trial.1
Given the evidence presented, the trial court reasonably concluded that it did not
have a bona fide doubt about Appellant’s competency to stand trial. See Iniquez,
374 S.W.3d at 618. Therefore, we conclude that the trial court did not abuse its
discretion by not conducting further competency proceedings.                               We overrule
Appellant’s first issue.
        In Appellant’s second issue, he asserts that the trial court erred by denying his
request for mistrial based on an out-of-court conversation involving one of the
State’s witnesses, the bailiff, and a juror. After the State rested, the trial court
recessed the proceedings for an extended lunch break. At the conclusion of the
recess, Appellant’s trial counsel informed the trial court that he had just observed a
conversation occurring between a juror, Jennifer Hobbs; Detective John Wilson,
who was a State’s witness; and the trial court’s bailiff, Danny Wade. Counsel stated
that, although he heard them talking, he did not hear them talking about the case.
        Detective Wilson, Juror Hobbs, and Bailiff Wade were each questioned about
the conversation. Detective Wilson testified that he and Bailiff Wade were talking
when Juror Hobbs joined their conversation. He said that they only talked for
“seconds” and that they did not talk about the case but, rather, his service in the Air


        1
         We note that Appellant’s trial counsel filed a subsequent motion for a psychiatric examination for
the purpose of determining Appellant’s sanity at the time of the offense. The trial court granted Appellant’s
motion by ordering that he be examined by Dr. John Crowley. Dr. Crowley determined that Appellant was
“sane at the time of the alleged offense.”
                                                      7
Force. Bailiff Wade testified that they talked about the Air Force and about
Detective Wilson being an Abilene police officer. Juror Hobbs testified that they
talked about her husband’s service in the Air Force, the town of Abilene, and the
crime rate in Abilene and also about how good of a town it was. Juror Hobbs
testified that the conversation took place over a span of fifteen minutes. Defense
counsel moved for a mistrial and stated that “we believe the integrity of this process
has now been compromised and believe that this -- these attempts to influence a juror
by ingratiating himself with that juror by having even casual conversations has made
a mistrial necessary.” The trial court denied the motion.
      The next morning, defense counsel re-urged his motion for mistrial. He
submitted two videos to the court that did not contain audio but did show the length
of the conversation between Detective Wilson, Bailiff Wade, and Juror Hobbs to be
eighteen minutes. Trial counsel again moved for a mistrial and, alternatively, asked
that the juror be dismissed. The trial court denied the motion for mistrial and denied
the motion to have the juror disqualified.2
      The trial court’s denial of a motion for mistrial is reviewed under an abuse of
discretion standard, and the trial court’s ruling must be upheld if it is within the zone
of reasonable disagreement. Coble v. State, 330 S.W.3d 253, 292 (Tex. Crim. App.
2010); Webb v. State, 232 S.W.3d 109, 112 (Tex. Crim. App. 2007). We view the
evidence in the light most favorable to the trial court’s ruling, and we do not
substitute our judgment for that of the trial court. Webb, 232 S.W.3d at 109. Only
in extreme circumstances, where the prejudice is incurable, will a mistrial be
required. Hawkins v. State, 135 S.W.3d 72, 77 (Tex. Crim. App. 2004).
      Appellant asserts that we are required to review the trial court’s denial of his
motion for mistrial under the holding in Mosley v. State, 983 S.W.2d 249, 259 (Tex.
Crim. App. 1998). The Court of Criminal Appeals in Mosley adopted three factors

      2
       On appeal, Appellant challenges only the denial of his motion for mistrial.
                                                 8
to consider in addressing harm stemming from improper jury argument made by a
prosecutor: (1) severity of the misconduct (the magnitude of the prejudicial effect of
the prosecutor’s remarks), (2) measures adopted to cure the misconduct (the efficacy
of any cautionary instruction by the judge), and (3) the certainty of conviction absent
the misconduct (the strength of the evidence supporting the conviction). Id. The
Mosley factors only apply when reviewing the denial of a motion for mistrial based
on a claim of improper jury argument. Archie v. State, 340 S.W.3d 734, 739 (Tex.
Crim. App. 2011) (“To evaluate whether the trial court abused its discretion in
denying a mistrial for improper jury argument, this Court, in Hawkins v. State,
adopted the three factors from Mosley v. State . . . .” (emphasis added) (footnotes
omitted)). Accordingly, we do not consider the Mosley factors in our analysis.
      Article 36.22 of the Code of Criminal Procedure provides: “No person shall
be permitted to converse with a juror about the case on trial except in the presence
and by the permission of the court.” CRIM. PROC. art. 36.22. The primary goal of
Article 36.22 is to insulate jurors from outside influence. Ocon v. State, 284 S.W.3d
880, 884 (Tex. Crim. App. 2009) (citing Chambliss v. State, 647 S.W.2d 257, 266
(Tex. Crim. App. 1983)). Therefore, if a violation is shown, the effectiveness of
possible remedies will be determined in part by whether the conversation influenced
the juror. Id. A violation of Article 36.22, once proven by the defendant, triggers a
rebuttable presumption of injury to the accused, and a mistrial may be warranted.
Hughes v. State, 24 S.W.3d 833, 842 (Tex. Crim. App. 2000); Moody v. State, 827
S.W.2d 875, 899–900 (Tex. Crim. App. 1992).
      By its express terms, a violation of Article 36.22 occurs when a person
converses with a juror “about the case on trial.” CRIM. PROC. art. 36.22 (emphasis
added); see Ocon, 284 S.W.3d at 884 (noting that Article 36.22 prohibits conversing
with a juror about the case on trial); Chambliss, 647 S.W.2d at 265. The defendant
has the burden to establish that, if a conversation occurred between a juror and
                                           9
someone else, the discussion involved matters concerning the specific case at trial.
Chambliss, 647 S.W.2d at 266 (citing Romo v. State, 631 S.W.2d 504, 506 (Tex.
Crim. App. 1982)). No violation of Article 36.22 was shown in Chambliss because
no evidence was presented that the juror and a witness discussed the case on trial
when they had a conversation.3
        Viewing the evidence in the light most favorable to the trial court’s ruling,
there was no showing of a violation of Article 36.22 because there was no evidence
that Detective Wilson, Bailiff Wade, and Juror Hobbs discussed the case on trial.
However, the trial court gave jurors the following instruction prior to trial:
                To avoid looking like you are friendly with one side of the case,
        do not mingle or talk with the lawyers, the witnesses, the parties, or
        anyone else involved in the case. You may exchange casual greetings
        like “hello” and “good morning.” Other than that do not talk with them
        at all. They have to follow these instructions, too, so you should not be
        offended when they follow the instructions.
Given the fact that the conversation constituted a violation of the trial court’s
instructions for jurors, the trial court was in the best position to assess the nature of
the violation and the harm, if any, that resulted from it. All three participants to the
conversation were questioned by the parties soon after it occurred. The paramount
issue is whether Appellant received a fair and impartial trial; therefore, the analysis
must focus on whether Juror Hobbs was biased as a result of the improper
conversation. See Ocon, 284 S.W.3d at 887. There is no indication that Juror Hobbs
received any new information about the case or that she was biased by merely
speaking with Detective Wilson and Bailiff Wade. Accordingly, the trial court did
not abuse its discretion by denying Appellant’s motion for mistrial. We overrule
Appellant’s second issue.



        3
          We note that, in Chambliss, the Court of Criminal Appeals stated that the juror “had no business”
talking to the witness. Chambliss, 647 S.W.2d at 266.
                                                    10
      Lastly, the jury found Appellant guilty of committing aggravated assault
under Section 22.02(a)(1) of the Texas Penal Code by intentionally or knowingly
causing serious bodily injury to Brown as charged in the second paragraph of the
indictment. However, the judgment reflects a conviction for aggravated assault with
a deadly weapon as defined by Section 22.02(b)(1) of the Texas Penal Code, which
relates to family or dating violence. We modify the judgment of conviction to reflect
the appropriate section of the Penal Code.
                                   This Court’s Ruling
      We modify the judgment of the trial court to reflect that the “Statute for
Offense” in this case is “22.02(a)(1) Penal Code,” rather than “22.02(B)(1) Penal
Code.” As modified, we affirm the judgment of the trial court.




                                                     JOHN M. BAILEY
                                                     JUSTICE


May 19, 2016
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.




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