Brooks v. State

604 S.W.3d 239

Jessie Lee BROOKS, Jr., Appellant

v.The STATE of Texas, Appellee

NO. 03-18-00759-CR

Court of Appeals of Texas, Austin.

Filed: July 3, 2020

Discretionary Review Granted November 11, 2020

Kyle Nuttall, Milam County & District Attorney's Office, 204 N. Central, Cameron, TX 76520, W. W. Torrey, County & District Attorney, Milam County, Texas, 204 N. Central, Cameron, TX 76520, for Appellee.

Sharon Lanell Diaz, Diaz & Wright, P. O. Box 522, Rosebud, TX 76570, for Appellant.

Before Justices Goodwin, Baker, and Kelly

OPINION

Chari L. Kelly, Justice

Jessie Lee Brooks Jr. was convicted by a jury of aggravated assault with a deadly weapon. See Tex. Penal Code § 22.02(a)(2). The indictment alleged that Brooks threatened Lisa Grayson, his girlfriend, with imminent bodily injury "by telling her that he was going to end her life" while using or exhibiting a deadly weapon, to wit: a piece of wood. See id. §§ 22.01(a)(2), 22.02(a)(2). Arising out of the same set of facts, the State also indicted Brooks for family violence assault by impeding Grayson's breath or circulation, see id. § 22.01(a)(2), and the jury found him not guilty of that offense. The trial court entered judgment on the jury's verdict, assessing punishment at 30 years' confinement and requiring Brooks to pay several court costs and fees.

In four issues, Brooks contends that (1) the evidence was insufficient to support the jury's finding that he threatened Grayson, (2) the costs or fees are facially unconstitutional as violations of the separation of powers, (3) we should modify the trial court's Order to Withdraw Funds from his Inmate Trust Account, and (4) we should modify the judgment to correct two clerical errors.

We reverse Brooks's conviction for aggravated assault and render a judgment of acquittal because there was a material variance between the indictment, which alleged that Brooks threatened Grayson "by telling her that he was going to end her life," and the evidence at trial, which showed a non-verbal threat of displaying a piece of wood, that resulted in insufficient evidence to support his conviction, and because the variance prejudiced his substantial rights.

BACKGROUND

Grayson lived with Brooks, her boyfriend, in Cameron, Texas. According to Grayson, as she was leaving for work one morning, Brooks attacked her. She believed that it started with Brooks feeling jealous over her receiving money from her child's father, so he "jumped on" her, as he had done several times before, and beat her. She testified that when she went to her car that morning, he beat her with "a two-by-four" wooden board that he retrieved from the house. As he "beat [her] with a board," she tried to protect herself with her arms, and he kept hitting her. She testified: he "hit[ ] me to the point it knocked my tooth—yes—I mean, my tooth came out, the partial on my tooth." And further: "When I fell and like hit—like grabbed both of his hands and he like literally choked me real hard." During her testimony, she said that she "didn't even talk to Brooks that morning" of the assault.

She also described prior assaults where Brooks "jumped" on her and beat her, including a prior assault over her children where he "grabbed me by my neck and slammed me to the—to the passenger door. And then he like jumped me, and then—and then he like threatened me and just like—and he like jumped on me and cussing me and cussing me."

Grayson also testified that, after the assault that was the subject of this prosecution, she had bruises all over her body and her fingers "were busted." She sought treatment for her injuries at a Rockdale emergency room 15–20 minutes away, in order to hide from Brooks. She told the ER physician "that she was hit by her boyfriend with a two-by-four about the right arm, right forearm, [and] right hand." She also told the physician that she "had been choked the day before for about a minute," "had some chest-wall pain from some trauma," and "was hit the day before."

That night, Brooks reported to the Cameron police that Grayson had returned to his house, broke the house's windows, and went back to Rockdale. Officer James Sherer, of the Cameron Police Department, and a fellow officer offered to issue Grayson a trespass warning not to return to the house. Brooks agreed, so the officers contacted law enforcement in Rockdale to find her.

Law enforcement found Grayson in Rockdale during a traffic stop. She told Officer Sherer, who arrived later, that Brooks "struck [her] with a wooden board" and that she had not broken the windows out of the house. In addition, she told other officers at the traffic stop about being hit with the board. Several officers noticed bruising on her arm and hand, which she attributed to Brooks's attack with the board.

Grayson also told Officer Sherer that during her several-month relationship with Brooks she went to a hospital once in Temple, where, "they had to, like, bring me back to life" because Brooks had "choked the s— out of" her. She expressed that Brooks had a history of telling her that he would stop hitting her, and she believed him, but the abuse continued.

After the traffic stop ended, Grayson went to a Cameron police station and provided a voluntary handwritten statement, which was admitted into evidence at trial. She described the attack:

The night went to car to get a Advil so Jessie lock me out the house I was tryin to come get back in house. he grad my neck start choching me so hard I couldn't Breath the he grad A Board start hitting me with it so hard I told Jessie that he was hurting me so he told me I need to Hit. So he kept Hittin me with the Board the After tha he start hittin my fingurs till they Stard Bleeding

Officer Clayton Domel of the Cameron Police Department reviewed the statement and later interviewed Grayson. She told him that there was an argument with Brooks during which Brooks "began to choke her." She said that she did not lose consciousness but "that she couldn't breathe and told him to stop." According to Officer Domel's description of Grayson's account, "at that point, [Brooks] quit choking her[,] and that's when he grabbed a piece of board, the two-by-four[,] from what she described[,] and began to strike her with it."

The State charged Brooks with two counts of assault in two separate indictments filed in two separate cause numbers. One charged him with intentionally or knowingly causing bodily injury to Grayson "by impeding the normal breathing or circulation of the blood ... by applying pressure with hands to [her] throat and neck." The other charged him with intentionally or knowingly threatening her with imminent bodily injury "by telling her that he was going to end her life, and [he] did use or exhibit a deadly weapon during the commission of the assault, to wit: a piece of wood."

The cases proceeded to trial. A jury was empaneled; the State read both indictments to the jury verbatim; and Brooks pleaded not guilty to both offenses. The following day, before opening statements, the court addressed an issue "with regard to an amendment of the indictment." The record reflects that about two and a half months before trial, the State filed a Notice of Intention to Amend the Indictment, in which it sought to amend the assault-by-threat indictment by, among other things, deleting the phrase "by telling her that he was going to end her life." The parties disputed whether the indictment had been amended by the notice, which had not been acted upon by the court. Ultimately, the trial court explained that trial would proceed on the original indictment as presented to the jury, implicitly denying the State's request to amend the indictment. While the judge seemed to agree with the State's argument that the phrase that it sought to delete was superfluous—remarking, "Well, I—frankly, I don't understand why it's in there but I think it's superfluous"—he stated that "the State's burden is to prove the elements of the offense as charged and that's my ruling."

The jury charge for aggravated assault by threat contained no instructions relating to the verbal threat contained in the indictment. In the abstract portion of the charge, the court defined "intentionally threaten another with imminent bodily injury" and "knowingly threaten another with imminent bodily injury" without reference to whether the threatening conduct was verbal or non-verbal. And, over Brooks's objection, the application paragraphs omitted the phrase "by telling her that he was going to end her life."¹ The court simply instructed the jury to find Brooks guilty if the State had proved beyond a reasonable doubt the three elements that

1. the defendant ... threatened imminent bodily injury to [Grayson];

2. the defendant did this –

a. intentionally; or

b. knowingly; and

3. the defendant, during the alleged assault, used or exhibited a deadly weapon, to wit: a piece of wood.

The jury acquitted Brooks of family violence assault by strangulation but found him guilty of aggravated assault by threat. This appeal followed.

DISCUSSION

I. Material Variance Between Indictment's Allegation of Verbal Threat and Lack of Proof at Trial of Any Verbal Threat

In his first issue, Brooks contends that the evidence was insufficient because the State failed to prove the "threatens" element of assault as it was charged in the indictment. See Tex. Penal Code §§ 22.01(a)(2), 22.02(a).

A. Applicable law and standard of review

A person commits aggravated assault if the person "commits assault as defined in Sec. 22.01 and the person: ... uses or exhibits a deadly weapon during the commission of the assault." Id. § 22.02(a)(2). A person commits assault if the person "intentionally or knowingly threatens another with imminent bodily injury." Id. § 22.01(a)(2). "Assault by threat requires only fear of imminent bodily injury and does not require a finding of actual bodily injury." Dolkart v. State , 197 S.W.3d 887, 893 (Tex. App.—Dallas 2006, pet. ref'd). The offense "is conduct-oriented,...