

Reversed and Remanded and Opinion filed March 3, 2011.
In
The
Fourteenth
Court of Appeals

NO. 14-10-00355-CR

Narada Hicks, Appellant 
v.
The State of
Texas, Appellee 

On Appeal from
the 174th District Court
Harris County, Texas
Trial Court
Cause No. 1234343

 
OPINION 
Appellant Narada Hicks challenges his conviction for
aggravated assault on the grounds that (a) insufficient evidence supports the
jury’s verdict, (b) the trial court reversibly erred by including a purported lesser-included
offense in its charge to the jury, and (c) the trial court reversibly
erred by denying his motion for mistrial when the jury was deadlocked and
instead providing a supplemental Allen charge.[1]  Because we
agree that the trial court erroneously charged the jury, we reverse and remand.
BACKGROUND
Appellant and the complainant, Angelo Jackson, met in
high school and became friends while working at a restaurant in Houston.  At
some point in 2007, appellant loaned Jackson a pair of Prada shoes.  Jackson
took the shoes to New Orleans; he never returned the shoes and later joined the
Army.  Appellant asked for his shoes back, but Jackson failed to return them.
In August 2008, Jackson was on leave from the Army
and returned to Houston to visit his mother.  While he was in Houston, Jackson
encountered appellant.  The two men discussed the shoes, and Jackson agreed to
pay appellant for the shoes.  The two arranged to meet in a parking lot near a discount
store later that day.  Jackson, accompanied by his fiancée, Troylyn Curtis,
drove to the parking lot.  In anticipation of the meeting, Jackson withdrew
cash from a nearby ATM.  
Appellant arrived at the parking lot shortly
thereafter and tapped on Jackson’s car window.  Jackson rolled down his window
and handed appellant $100.  After appellant counted the money, he asked Jackson
to get out of the car and talk to him; the two went behind the car near the
trunk.  Appellant asked for more money, but Jackson denied having any more.  When
appellant withdrew a black revolver from behind his waist with his left hand,
Jackson believed appellant was going to try to take more money from him. 
Jackson rushed in and grabbed appellant’s hand, and the two struggled over the
gun.  When Curtis stepped out of the car, appellant pointed the gun in her
direction as he and Jackson continued fighting over it.  Jackson told Curtis to
get back in the car because appellant had a gun, and she did so.
Appellant managed to get away from Jackson when
Jackson was distracted by Curtis’ stepping out of the car.  Jackson grabbed
appellant again, and the two continued to struggle.  During the altercation, appellant
pulled the trigger on the gun and shot Jackson in the leg.  Appellant then
stood up and pointed the gun at Jackson.  The injured man pleaded for his life
and gave appellant his chain and watch.  Appellant left the scene in a vehicle with
another individual.  Curtis called 911 when she learned that Jackson had been
shot.  At the scene, Jackson and Curtis identified appellant as the shooter.  Appellant
surrendered in court a few days later.  
A grand jury indicted appellant for aggravated
assault by “unlawfully, intentionally and knowingly causing bodily injury to
ANGELO JACKSON by using a deadly weapon, namely, [a] FIREARM.”  Jackson, Curtis
(who, at the time of trial, was Jackson’s wife and using his last name), two
police officers, and appellant testified at his jury trial.  Jackson and Curtis
testified to the events described above.  The police officers described their
response to the 911 call and their subsequent investigation.  Appellant agreed
with much of Jackson’s testimony regarding their history and the shoes, but he
testified that it was Jackson, not he, who pulled the gun during their
altercation.  He further explained that the gun accidentally discharged while
they were struggling over it.  
In its jury charge, the trial court first asked the
jury whether it found from the evidence beyond a reasonable doubt that
appellant intentionally or knowingly caused bodily injury to Jackson by using a
firearm.  The trial court called this offense “aggravated assault—intentionally
or knowingly causing bodily injury.”  The trial court then instructed the jury
that if the jury was unable to agree that appellant was guilty of this offense,
the jury should decide whether it found from the evidence beyond a reasonable
doubt that appellant recklessly caused bodily injury to Jackson by using a
firearm.  The trial court called this offense “aggravated assault—recklessly
causing bodily injury,” and the trial court submitted it as a lesser-included
offense.  The jury convicted appellant of aggravated assault, finding beyond a
reasonable doubt that appellant recklessly caused bodily injury to Jackson
using a firearm. The jury assessed punishment at confinement in the Texas Department
of Criminal Justice, Institutional Division for ten years.  Based on the jury’s
recommendation, the trial court suspended appellant’s sentence and placed him
on community supervision for ten years.  This appeal timely ensued.
ANALYSIS
A.        Sufficiency of
the Evidence
In
his first and second issues, appellant challenges the legal and factual
sufficiency of the evidence to support his conviction.  However, while this
appeal was pending, a majority of the judges of the Texas Court of Criminal
Appeals determined that “the Jackson v. Virginia[[2]] legal-sufficiency
standard is the only standard that a reviewing court should apply in
determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable
doubt.”  Brooks v. State, 323 S.W.3d 893, 894–95 (Tex. Crim. App. 2010)
(plurality op.); id. at 926 (Cochran, J., concurring).  Accordingly, we
review the sufficiency of the evidence in this case under a rigorous and proper
application of the Jackson v. Virginia legal sufficiency standard.  See
Pomier v. State, 326 S.W.3d 373, 378 (Tex. App.—Houston [14th Dist.] 2010,
no pet.).
In his sufficiency challenge, appellant asserts that
there is no evidence to support the jury’s verdict that appellant recklessly
assaulted Jackson.  But under Malik v. State, we measure the sufficiency
of the evidence against the hypothetically correct jury charge.  953 S.W.2d
234, 240 (Tex. Crim. App. 1997) (en banc).  A hypothetically correct jury
charge is one that “accurately sets out the law, is authorized by the
indictment, does not unnecessarily increase the State’s burden of proof or
unnecessarily restrict the State’s theories of liability, and adequately
describes the particular offense for which the defendant was tried.”  Id. 

Here, the hypothetically correct jury charge would
have charged appellant with aggravated assault limited by the mental states
listed in the indictment:  intentional or knowing behavior.  See id.; see
also Curry v. State, 30 S.W.3d 394, 404–05 (Tex. Crim. App. 2000)
(explaining that hypothetically correct jury charge could not simply track
statute, but must be limited by allegations in the indictment).  To convict
appellant of aggravated assault as was charged here, the State needed to
establish that appellant (a) intentionally or knowingly[3] (b) caused
bodily injury to Jackson (c) by using a firearm. .  See Tex. Penal Code
Ann. §§ 22.01(a)(1) (West Supp. 2009) (defining assault); 22.02(a)(2) (defining
aggravated assault as assault while using or exhibiting a deadly weapon).  A
firearm is a deadly weapon per se.  See id. § 1.07(a)(17)(A) (West Supp.
2009).  For the reasons stated in section B, below, the hypothetically correct
jury charge would not include the submission of “aggravated assault-recklessly
causing bodily injury.”
Proof of a mental state almost always depends on
circumstantial evidence.  Gant v. State, 278 S.W.3d 836, 839 (Tex. App.—Houston
[14th Dist.] 2009, no pet.).  Here, Jackson testified that appellant pulled a
gun out of the back of his pants when Jackson refused to give him any more
money for his shoes.  Jackson explained appellant raised the gun toward Jackson
when Jackson “rushed him.”  Jackson further testified that appellant pointed
the gun towards his fiancée.  Finally, Jackson testified that appellant “pulled
the trigger” on the gun.  This testimony supports a finding that appellant
intentionally or knowingly used a firearm while causing bodily injury to
Jackson, i.e., by shooting him.  See Simpson v. State, 227 S.W.3d
855, 861 (Tex. App.—Houston [14th Dist.] 2007, no pet.).  
Accordingly, viewing the evidence in the light most
favorable to the verdict, we conclude that a rational fact-finder could have
concluded beyond a reasonable doubt that appellant intentionally or knowingly
caused bodily injury to Jackson by using or a firearm.  We therefore overrule
appellant’s first and second issues.  
B.        Charge
Error
In his third issue, appellant asserts that the trial
court reversibly erred by submitting a jury instruction allowing the jury to
convict him of aggravated assault by recklessly causing bodily injury with a
firearm.  A claim of jury-charge error is governed by the procedures set forth
in Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985).  We
must first determine whether the trial court erred in its submission of the
charge.  Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). 
If error exists and, as here, appellant properly objected at trial, reversal is
required if “some harm” resulted, i.e., if the error was “calculated to
injure the rights of the defendant.”  Id. (quoting Almanza, 686
S.W.2d at 171).  
            Here, the charge provides:
Now, if you find from the evidence beyond a reasonable
doubt that in Harris County, Texas, on or about the 23rd day of August, 2008,
the defendant, Narada Hicks, did then and there unlawfully, intentionally or
knowingly cause bodily injury to Angelo Jackson by using a deadly weapon,
namely, a firearm, then you will find the defendant guilty of aggravated
assault intentionally or knowingly causing bodily injury, as charged in the
indictment. 
Unless you so find from the evidence beyond a reasonable
doubt, or if you have a reasonable doubt thereof, or if you are unable to
agree, you will next consider whether the defendant is guilty of the lesser
offense of aggravated assault-recklessly causing bodily injury.
Therefore, if you find from the evidence beyond a
reasonable doubt that on or about the 23rd day of August, 2008, in Harris
County, Texas, the defendant, Narada Hicks, did then and there unlawfully,
recklessly cause bodily injury to Angelo Jackson by using a deadly weapon,
namely, a firearm, then you will find the defendant guilty of aggravated
assault-recklessly causing bodily injury.
(emphasis added).
“In
a prosecution for an offense with lesser included offenses, the jury may find
the defendant not guilty of the greater offense, but guilty of any lesser
included offense.”  Tex. Code Crim. Proc. Ann. art. 37.08 (West 2006).  An
offense is a lesser-included offense if, as is relevant here, “it differs from
the offense charge only in the respect that a less culpable mental state
suffices to establish its commission[.]”  Id. art. 37.09(3). It might
seem that aggravated assault based on recklessly causing bodily injury could be
a lesser-included offense of aggravated assault based on intentionally or
knowingly causing bodily injury.  However, the Texas Court of Criminal Appeals
has concluded that “bodily injury” assault under section 22.01(a)(1) of the
Texas Penal Code is a single criminal offense requiring proof of one of three
culpable mental states:
In its “bodily
injury” assault subsection, the legislature stated that any of three culpable
mental states suffices: intentionally, knowingly, or recklessly causing bodily
injury.  The legislature was apparently neutral about which of these three
mental states accompanied the forbidden conduct because all three culpable mental
states are listed together in a single phrase within a single subsection of the
statute.  There is no indication that the legislature intended for an
“intentional” bodily injury assault to be a separate crime from a “knowing”
bodily injury assault or that both of those differ from a “reckless” bodily
injury assault.  All three
culpable mental states are strung together in a single phrase within a single
subsection of the statute.  All result in the same punishment.  They are
conceptually equivalent.
Landrian v. State, 268
S.W.3d 532, 537 (Tex. Crim. App. 2008) (footnotes omitted).  Regardless of
which culpable mental state is found by the jury, the range of punishment does
not change for assault under section 22.01(a)(1) of the
Texas Penal Code or for aggravated assault based on this type of assault.  See
Tex. Penal Code §§ 22.01(b), 22.01(b-1), 22.02(b).  Thus, “aggravated
assault—recklessly causing bodily injury” as set forth in the jury charge could
not be a lesser-included offense of the aggravated assault charged in the
indictment; rather, it was the same crime as the charged offense based on a
culpable mental state that could have been but was not alleged in the
indictment.  See id. §§ 22.01(a)(1), 22.02(a)(2), (b); Landrian, 268 S.W.3d
at 537; see also Reed v. State, 117 S.W.3d 260, 263–64 (Tex.
Crim. App. 2003); id., 117 S.W.3d at 266-67 (Johnson, J., concurring)
(concluding that aggravated assault based on recklessly causing bodily injury
cannot be a lesser-included offense of aggravated assault based on
intentionally or knowingly causing bodily injury).[4] 
Accordingly, there is error in the jury’s charge.[5]  
Because appellant properly objected to the jury
charge on this basis, we must consider whether appellant suffered “some harm”
from this error.  See Barrios, 283 S.W.3d at 350.  The trial court
improperly broadened the indictment by including “recklessly” in the jury
instructions when the indictment alleged “intentionally” and “knowingly.”  Reed,
117 S.W.3d at 265.  It is plausible that, without this improperly-broadened
charge, appellant could have been acquitted of the offense for which he was
indicted.  Under these circumstances, we conclude that appellant was harmed.  We
sustain appellant’s third issue.[6]
In sum, we have concluded that the evidence is
legally sufficient to support appellant’s conviction and have overruled his two
sufficiency issues.  However, we have sustained appellant’s jury-charge error
issue.  For the foregoing reasons, we reverse and remand for a new trial.[7]
 
                                                                                    
                                                                        /s/        Adele
Hedges
                                                                                    Chief
Justice
 
Panel consists of Chief Justice Hedges
and Justices Frost and Christopher.
Publish — Tex. R. App. P. 47.2(b).





[1]
See Allen v. United States, 164 U.S. 492, 501 (1896).  


[2]
443 U.S. 307, 319 (1979).


[3]
A person acts intentionally when it is his “conscious objective or desire to
engage in the conduct or cause the result.”  Tex. Penal Code Ann. § 6.03(a)
(West 2003).  A person acts knowingly when he is aware (a) of the “nature of
his conduct or that the circumstances exist” or (b) “that his conduct is
reasonably certain to cause the result.”  Id. § 6.03(b).  


[4]
Reed is not directly on point because it did not involve a
lesser-included offense instruction.  See id. at 264–65.  However, the Reed
 court expressly states that “a conviction for a lesser included offense
requires not only a lesser included offense instruction to the jury, but also
an acquittal for the charged offense[.]”  Id. at 265 (emphasis
added).  Here, appellant was not acquitted of the charged offense; he was
convicted of it by committing the offense with a less-culpable mental state
than that authorized by the indictment.  Additionally, the Reed court
emphasized that article 21.15 of the Texas Code of Criminal Procedure imposes
additional notice requirements when recklessness is alleged in the indictment:
Whenever recklessness or
criminal negligence enters into or is a part or element of any offense, or it
is charged that the accused acted recklessly or with criminal negligence in the
commission of the offense, the complaint, information, or indictment in order
to be sufficient in any such case must allege, with reasonable certainty, the
act or acts relied upon to constitute recklessness or criminal negligence, and
in no event shall it be sufficient to allege merely that the accused, in
committing the offense, acted recklessly or with criminal negligence.
Tex.
Code Crim. Proc. Ann. art. 21.15 (West 2009).


[5]
The State directs us to Rocha v. State, for the proposition that an
instruction on the purported lesser-included offense of reckless aggravated
assault was proper even though only an intentional or knowing offense was
alleged in the indictment.  648 S.W.2d 298, 302 (Tex. Crim. App. [Panel Op.]
1983) (op. on reh’g).  However, the greater offense alleged in Rocha was
attempted murder, an entirely different offense from aggravated assault.  Id.
at 300–01.  Thus, Rocha is easily distinguishable from the present
situation.


[6] Appellant urges this
court to reverse and order entry of a judgment of acquittal on the basis that
the jury acquitted him of the properly-submitted offense.  But we have no
authority to order entry of a judgment of acquittal “unless either the trial
court’s ruling amounts to a de facto but unacknowledged acquittal” or we find
that the evidence is legally insufficient to support the conviction.  Benavidez
v. State, 323 S.W.3d 179, 181–83 (Tex. Crim. App. 2010) (concluding that
improper submission of lesser-but-not-included offense is not jurisdictional
and instead “trial error” that would not bar State from retrying case).  We
have concluded that the evidence is legally sufficient to support appellant’s conviction. 
Further, the jury charge here does not direct the jury that it must first find
appellant “not guilty” of the “greater offense” before it may consider the
“lesser offense.”  Instead, it authorizes the jury to consider the “lesser
offense” if it has a reasonable doubt or if it is simply unable to agree that
appellant committed the “greater offense.”


[7]
Because of our disposition of appellant’s third issue, we need not consider
appellant’s fourth issue regarding alleged error in the trial court’s denial of
his motion for mistrial and its decision to give an Allen charge
instruction.  See Tex. R. App. P. 47.1. 


