      TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN


                                       NO. 03-17-00056-CR



                                    Jonathan Price, Appellant

                                                  v.

                                   The State of Texas, Appellee


     FROM THE DISTRICT COURT OF TRAVIS COUNTY, 450TH JUDICIAL DISTRICT
        NO. D-1-DC-15-206378, HONORABLE BRAD URRUTIA, JUDGE PRESIDING



                             MEMORANDUM OPINION


               A jury convicted appellant Jonathan Price of injury to a disabled individual, see Tex.

Penal Code § 22.04(a)(3), (f), and assessed his punishment, enhanced pursuant to the repeat offender

provision of the Texas Penal Code, at confinement for nine years in the Institutional Division of the

Texas Department of Criminal Justice, see id. § 12.42(a). In two issues, appellant argues that the

trial court erred by denying his requested jury-charge instruction on the lesser-included offense of

assault bodily injury and by excluding evidence of appellant’s “mental health issues relevant to mens

rea during the guilt/innocence stage of the trial.” For the following reasons, we overrule appellant’s

issues but, having found non-reversible clerical error in the written judgment, we modify the trial

court’s judgment to correct the clerical error and, as modified, affirm the judgment of conviction.
                                           Background1

               The jury heard evidence that, on the morning of November 2, 2015, a police officer

responded to a call for service in downtown Austin involving an incident in which appellant

“punched” another man in the face with his fist. The other man, who is blind, had his service dog

with him and was walking on a sidewalk near a bus stop at the time of the incident. After speaking

with an eyewitness to the incident and both men, the police officer arrested appellant for injury to

a disabled person. Appellant was subsequently indicted for intentionally or knowingly causing

bodily injury to a disabled individual by striking the individual with his hands.2

               The State’s witnesses during the guilt or innocence phase of the jury trial were the

blind man, the eyewitness to the incident, and the police officer who responded to the call for

service. The eyewitness identified appellant as the person who attacked the blind man. Her

testimony included that the assailant “walked up and pushed the [blind] man and punched him in the

face,” she did not see any conversation between the assailant and the blind man, and the blind man

did not do anything before the incident occurred.

               The blind man testified about his visual impairment and the incident. He testified that

he has “no central vision,” that he “can see light and dark and some shadows,” but that he does not

“have any detail or knowledge of things that are around [him].” He also answered “No” when asked

       1
          Because the parties are familiar with the facts of the case, its procedural history, and the
evidence adduced at trial, we provide only a general overview of the facts of the case here. We
provide additional facts in the opinion as necessary to advise the parties of the Court’s decision and
the basic reasons for it. See Tex. R. App. P. 47.1, 47.4. The facts recited are taken from the
testimony and exhibits admitted at trial.
       2
          The indictment also included the allegation that appellant recklessly caused bodily injury
to a disabled individual, but the State abandoned the reckless language in the indictment at trial.

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if he was able to see faces, people, or tell if someone was walking up to him. He explained that he

had been blind for “almost 11 years,” that he was certified by the Social Security Administration to

receive benefits because of his blindness, and he described how being blind impacted his daily

activities. He answered, “It does,” when asked if his “blindness substantially makes [him] unable

to protect [himself] from harm.” Concerning the incident, he testified that he “was walking and [he],

all of a sudden, felt a sudden sharp pain in [his] chest” and he “kind of stopped and then [he] was

struck in the face” and that, after he was hit, he “yelled out what are you doing, I’m blind,” “swung

out to clear [his] immediate personal space,” and contacted the police. He also described his injuries

from the incident—“some abrasions on [his] face and pain in [his] chest.” Further, he testified that

he had his service dog with him at the time of the incident and that his dog was wearing its harness

that has information on it that the dog is guiding a blind person. During the trial, the blind man’s

dog was present and wearing its harness.

               The police officer testified about his investigation of the incident. He testified that

appellant told him that “the person, the handicapped person with the dog, came up to him and was

trying to fight him”; that appellant “was standing on the sidewalk when [the person] bumped into

him”; that the person had stated to him “why are you standing in the middle of the sidewalk”; and

that he “had punched [the person] in the face one time with his closed fist.” As to his discussions

with the blind man, the officer testified that “[h]e stated it hurt when he got punched”; that he

complained of “pain”; and that the blind man had “swelling to the left part of the cheek” and that

“[i]t looked sort of red.” The exhibits also included photographs of the man’s face after being hit,




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a letter from the Social Security Administration stating that he receives supplemental security income

as a blind individual, and the recording of the 911 call made immediately after the incident.

               In the charge of the court, the jury was instructed:


       A person commits an offense of injury to a disabled individual if he intentionally or
       knowingly by act causes a disabled individual bodily injury.

       It is an affirmative defense to prosecution for injury to a disabled individual that the
       person did not know and could not reasonably have known that the individual was
       a disabled individual at the time of the offense.


The jury also was instructed that “‘[r]easonable belief’ means a belief that would be held by an

ordinary and prudent man in the same circumstances as the actor” and, relevant here, that a

“‘[d]isabled individual’ means a person who by reason of . . . physical . . . disease, defect, or injury

is substantially unable to protect the person’s self from harm.”

               The jury found appellant guilty and, following the punishment phase of the trial,

assessed appellant’s punishment, enhanced based on one prior felony conviction, at confinement of

nine years. The trial court entered judgment in accordance with the jury’s verdict. Appellant filed

a motion for new trial, which was overruled by operation of law. This appeal followed.


                                               Analysis

Lesser-Included Offense

               In his first issue, appellant argues that the trial court erred by denying

defense counsel’s request for a jury-charge instruction on assault bodily injury because: (i) it is a

lesser-included offense to injury to a disabled individual as alleged in the indictment and



                                                   4
(ii) evidence was adduced at trial to prove assault bodily injury if the jury had found in favor of

appellant on his affirmative defense that he did not know and could not reasonably have known that

the blind man was disabled. See Tex. Penal Code § 22.04(m) (stating that it is affirmative defense

to prosecution of injury to disabled individual “that the person did not know and could not

reasonably have known that the individual was a disabled individual as defined by Subsection (c),

at the time of the offense”); see also id. § 22.04(c)(3) (defining “disabled individual”).

               We review alleged jury charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743–44

(Tex. Crim. App. 2005). Determining whether a defendant is entitled to a lesser-included-offense

instruction also requires a two-part analysis. Goad v. State, 354 S.W.3d 443, 446 (Tex. Crim.

App. 2011); Hall v. State, 225 S.W.3d 524, 528 (Tex. Crim. App. 2007); see State v. Meru,

414 S.W.3d 159, 162–63 (Tex. Crim. App. 2013). We first consider whether the offense contained

in the requested instruction is a lesser-included offense of the charged offense. Rice v. State,

333 S.W.3d 140, 144 (Tex. Crim. App. 2011); Hall, 225 S.W.3d at 535. If so, we must decide

whether the admitted evidence supports the instruction. Goad, 354 S.W.3d at 446; Rice, 333 S.W.3d

at 144–45.

               The State does not challenge that assault causing bodily injury is a lesser-included

offense of injury to a disabled individual as charged in the indictment here. See Tex. Code Crim.

Proc. art. 37.09(1); see also Tex. Penal Code §§ 22.01(a)(1) (listing elements of assault causing

bodily injury), 22.04(a)(3) (listing elements of injury to disabled individual). Thus, we proceed to



                                                  5
the second part of the analysis. Under this part, we must determine if there is some evidence in the

record that would permit a jury to rationally find that, if appellant is guilty, he is guilty only of the

lesser-included offense. Meru, 414 S.W.3d at 163; Rice, 333 S.W.3d at 145. “The evidence must

establish the lesser-included offense as ‘a valid, rational alternative to the charged offense.’” Rice,

333 S.W.3d at 145 (quoting Hall, 225 S.W.3d at 536). “We consider all of the evidence admitted

at trial, not just the evidence presented by the defendant.” Goad, 354 S.W.3d at 446; Rousseau

v. State, 855 S.W.2d 666, 672 (Tex. Crim. App. 1993). “Anything more than a scintilla of evidence

is sufficient to entitle a defendant to a lesser charge.” Wortham v. State, 412 S.W.3d 552, 558 (Tex.

Crim. App. 2013); Sweed v. State, 351 S.W.3d 63, 68 (Tex. Crim. App. 2011). We may not consider

the credibility of the evidence or whether it conflicts with other evidence or is controverted. Goad,

354 S.W.3d at 446–47. However, “it is not enough that the jury may disbelieve crucial evidence

pertaining to the greater offense, but rather, there must be some evidence directly germane to the

lesser-included offense for the finder of fact to consider before an instruction on a lesser-included

offense is warranted.” Sweed, 351 S.W.3d at 68 (quoting Skinner v. State, 956 S.W.2d 532, 543

(Tex. Crim. App. 1997)). “Meeting this threshold requires more than mere speculation—it requires

affirmative evidence that both raises the lesser-included offense and rebuts or negates an element of

the greater offense.” Cavazos v. State, 382 S.W.3d 377, 385 (Tex. Crim. App. 2012).

                Appellant does not dispute that the victim was disabled—that he was blind—but

focuses on the trial court’s inclusion of the jury instruction on his affirmative defense that he did not

know and could not reasonably have known that the victim was disabled at the time of the incident

and the trial court’s implied conclusion that evidence supported appellant’s affirmative defense. See



                                                   6
Tex. Penal Code § 2.04(c) (“The issue of the existence of an affirmative defense is not submitted to

the jury unless evidence is admitted supporting the defense.”). Appellant points to the officer’s

testimony that appellant told the officer that the victim “bumped” into appellant, that the victim was

trying to fight him, and that he thought that the victim was just walking his dog; the victim’s

testimony that he has run or bumped into people who say that they did not see his service dog and

that his service dog is “very unobtrusive”; and the evidence that the writing on the service dog’s

harness was visible from the front, but not the sides.

               Whether appellant “did not know or could not reasonably have known” that the victim

was disabled at the time of the incident, however, is not the question for determining whether the

lesser-included offense of assault bodily injury should have been submitted to the jury. See Bunn

v. State, No. 01-00-00503-CR, 2001 Tex. App. LEXIS 1714, at *6 (Tex. App.—Houston [1st Dist.]

Mar. 15, 2001, no pet.) (not designated for publication) (affirming conviction of injury to elderly

person, concluding that trial court did not err by denying jury instruction on lesser-included offense

of assault, and explaining that testimony that officer could not tell complainant’s age by looking at

her “does not constitute any evidence that the complainant was under 65 years of age”). To warrant

the requested lesser-included-offense instruction here, there must be some affirmative evidence in

the record demonstrating that the victim was not disabled to negate that element of the greater

offense. See Tex. Penal Code § 22.04(a)(3), (c)(3). Appellant directs us to none.

               No evidence in the record—including the evidence of appellant’s lack of awareness

of the victim’s blindness—negates or rebuts the evidence that the victim was disabled at the time of

the incident. See Bunn, 2001 Tex. App. LEXIS 1714, at *6. Given the uncontroverted evidence



                                                  7
demonstrating that the victim was disabled, we conclude that no rational jury could find that

appellant was guilty only of the lesser offense of assault bodily injury. Accordingly, the trial court’s

denial of the requested jury-charge instruction does not constitute error, and we need not conduct a

harm analysis. See Celis v. State, 416 S.W.3d 419, 423 (Tex. Crim. App. 2013); Sakil v. State,

287 S.W.3d 23, 26 (Tex. Crim. App. 2009). We overrule appellant’s first issue.


Exclusion of Evidence

                In his second issue, appellant argues that the trial court erred by refusing to allow

defense counsel to introduce evidence of his “mental health issues relevant to mens rea during the

guilt/innocence stage of the trial.” Appellant directs us to defense counsel’s examination of the

investigating police officer following his answer of “correct” to counsel’s question if it was correct

that the officer never took appellant to be evaluated for psychological emergency services after he

arrested appellant. The prosecutor objected in the middle of defense counsel’s next question to the

officer, which defense counsel represented was going to be “if [the officer] was aware if Mr. Price

had been treated for psychological services.” The trial court sustained the prosecutor’s objection to

the question, and defense counsel proceeded to a different line of questioning.3


       3
         The parties had the following exchange with the trial judge at the bench concerning the
prosecutor’s objection to defense counsel’s anticipated next question to the officer:

        [Prosecutor]:           While I don’t know what [defense counsel] is about to ask, I
                                anticipate he’s going to ask—I’m sorry, I’m losing my train
                                of thought for a second. He’s going to assume facts not in
                                evidence, try to insert some evidence about Mr. Price
                                allegedly being mentally disabled. Number one, this assumes
                                facts not in evidence. Number two, evidence of diminished
                                capacity is not admissible in the state of Texas as a legal

                                                   8
              Preservation of error in the exclusion of evidence requires the complaining party to

comply with Texas Rule of Evidence 103 by making an offer of proof that sets forth the substance

of the proffered evidence. See Tex. R. Evid. 103(a)(2); Mays v. State, 285 S.W.3d 884, 889 (Tex.

Crim. App. 2009); Warner v. State, 969 S.W.2d 1, 2 (Tex. Crim. App. 1998). “The offer of proof

may consist of a concise statement by counsel, or it may be in question-and-answer form.” Mays,



                             defense to any crime. It’s either insanity or nothing. So we
                             object to both, assumes facts not in evidence and relevance to
                             any evidence about his mental health.

       The Court:            I don’t think he has asked the question yet, but, [defense
                             counsel], where are you going?

       [Defense Counsel]:    Well, I was just going to ask if he was aware if Mr. Price had
                             been treated for psychological services.

       [Defense Counsel]:    He can say no.

       The Court:            I’m just saying, I don’t think it’s relevant at this point. It
                             might be relevant at some point later but not now.

       [Defense Counsel]:    It’s relevant to intent.

       [Prosecutor]:         Your honor, I have voluminous case law on the issue of
                             diminished capacity—

       The Court:            I’m in agreement with you, counsel. I’m not going to allow
                             you to ask the question about whether [the officer] knows
                             whether [appellant] was disabled or not, so objection is
                             sustained, if that’s your question. I mean, you haven’t asked
                             it yet.

       [Defense Counsel]:    That’s what my question was going to be.

       The Court:            Okay.



                                                 9
285 S.W.3d at 889. If the proffer is in the form of a statement, it “must include a reasonably specific

summary of the evidence offered and must state the relevance of the evidence unless the relevance

is apparent, so that the court can determine whether the evidence is relevant and admissible.” Id. at

889–90 (quoting Warner, 969 S.W.2d at 2). The proffer must extend “beyond the anticipated

questions” that the complaining party intends to ask the witness and reveal, “with some degree of

specificity, the substantive evidence [the complaining party] intended to present.” Id. at 890. “The

purpose of the offer of proof is to show what the witness’s testimony would have been—otherwise,

there is nothing before the appellate court to show reversible error in the trial court’s ruling.” Bundy

v. State, 280 S.W.3d 425, 428–29 (Tex. App.—Fort Worth 2009, pet. ref’d) (citing Stewart v. State,

686 S.W.2d 118, 122 (Tex. Crim. App. 1984)).

                Here, because appellant provided no summary of what the officer’s testimony would

have been in responding to the objected-to question or any other evidence he sought to admit

concerning his “mental health issues” during the guilt or innocence phase of the trial, this Court

cannot determine whether the trial court abused its discretion or erred by excluding the evidence and,

if so, whether appellant was harmed by the exclusion. Further, appellant has not directed us to any

attempts by him to make an offer of proof setting forth the substance of evidence of his “mental

health issues.” Accordingly, appellant has not preserved the complaint he raises in his second issue

for our review. See Blackshear v. State, 385 S.W.3d 589, 590–91 (Tex. Crim. App. 2012)

(explaining that preservation of error is systemic requirement on appeal and that reviewing court

should not address merits of issue that has not been preserved for appeal). We overrule his

second issue.



                                                  10
Clerical Error in Judgment

               As appellant points out, the written judgment in this case contains a clerical error.

It states that appellant’s plea to the 2nd Enhancement/Habitual paragraph was “True” and that the

finding on that paragraph was “True.” The State pursued only the 1st Enhancement Paragraph

during trial. This Court has authority to modify incorrect judgments when the necessary information

is available to do so. See Tex. R. App. P. 43.2(b); Bigley v. State, 865 S.W.2d 26, 27–28 (Tex. Crim.

App. 1993). Accordingly, we modify the judgment to reflect that the plea and finding as to the 2nd

Enhancement/Habitual Paragraph in the judgment are both “N/A.”


                                            Conclusion

               Having overruled appellant’s issues but having found non-reversible clerical error in

the written judgment of conviction, we modify the judgment as noted above to correct the clerical

error and affirm the trial court’s judgment of conviction as modified.



                                              __________________________________________
                                              Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Field

Modified and, as Modified, Affirmed

Filed: October 31, 2018

Do Not Publish




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