Goffney v. State

DWIGHT GOFFNEY, Appellant v. THE STATE OF TEXAS, Appellee

NO. 01-19-00282-CR

Court of Appeals For The First District of Texas

December 15, 2020

On Appeal from 248th District Court Harris County, Texas

Trial Court Case No. 1570145

MEMORANDUM OPINION

A jury found appellant, Dwight Goffney, guilty of the felony offense of aggravated assault.¹ After appellant pleaded true to the allegation in an enhancementparagraph that he had been previously convicted of a felony offense, the jury assessed his punishment at confinement for five years and a $5,000 fine. In four issues, appellant contends that the trial court erred in instructing the jury and his trial counsel provided him with ineffective assistance of counsel.

We modify the trial court's judgment and affirm as modified.

Background

The complainant, Roberto Mena, testified that in October 2015, he was self-employed as a contractor. In October 2015, he did some remodeling work for Tereza Demonbreun, the owner of a home at 451 Woodrail Street in Harris County, Texas. The complainant lived a few blocks away from Demonbreun's home, and as he was driving by her home one day, he saw her struggling with a piece of drywall in her garage. He stopped to help her and learned that her home had been damaged by a hurricane. After they talked, the complainant agreed to do some work for Demonbreun at her home. The complainant was to perform "demo[lition], take down all the drywall and insulation, repair it, put new insulation in, drywall, texture, [and] paint . . . ."

About three days after starting the job at Demonbreun's home, the complainant met Jessica Dennee—appellant's girlfriend and Demonbreun's daughter—who was at the home with her newborn baby. The complainant also became acquainted with appellant, who also was on the property. Appellant told thecomplainant that Demonbreun "wasn't alone," and threatened him not to "mess with [his] family." The complainant responded that it "wasn't [his] intention, that [he] was there to help out."

After the complainant completed his work at Demonbreun's home, he did a walk-through of the home with Demonbreun to show her the work. Demonbreun had "some issues" because she decided to have plumbing work done in the home and the plumbers had been "making big holes in the wall" and "destroying [his] job." The complainant agreed to have Demonbreun mark the issues that she saw with blue tape, and he went back the next day to "take care" of them. He did not fix any of the wall damage caused by the plumbers because "it was not part of [his] contract." Then, he went back the following day, a Friday, to finish the cleanup.

On Saturday, the complainant received a text message from Demonbreun telling him that appellant "was going to take over everything with money and any job that needed to be done." The complainant thought this would be a problem because his work "was already done; and . . . [appellant] didn't know what was going on" because "[h]e was never in the house."

On October 15, 2017, appellant sent a text message to the complainant and scheduled an appointment to meet the complainant at Demonbreun's house at 3:00 p.m. At 3:02 p.m., appellant sent the complainant a text message "to see if [he] was going to be able to be there at [the] appointment." The complainant responded,"yes, [and] that [he] was on [his] way." At 3:05 p.m., the complainant received another text message from appellant asking "where was [he]." The repeated text messages were a "red flag" for the complainant, and he was concerned.

The complainant arrived at Demonbreun's home about ten minutes late to his appointment with appellant. He believed that Demonbreun would be at the home along with appellant, but he did not see her car. He took out his cellular telephone and began recording because he suspected that there "wasn't going to be something good [coming] out of this."

As he approached the house, the complainant walked into the garage, and found Dennee and appellant sitting inside. The complainant asked appellant "what seem[ed] to be the problem," and appellant had the complainant follow him inside the home to a bathroom. The house was still under construction, and on the way to the bathroom, the complainant saw that someone had taken down the kitchen cabinets, and there were cabinets on the floor and other materials. The bathroom was dark, and the complainant saw a piece of drywall and a two-by-four wooden board by the bathroom door.

The complainant followed appellant into the bathroom, while Dennee remained in the hallway outside the bathroom. Appellant told the complainant that he had "missed a spot[] [and] that [he] oversprayed the toilet" with the wall texturing product. The complainant admitted that "[he] forgot" and "[he] missed it." Thecomplainant told appellant that he "was going to go ahead and clean it up with a wet rag." Then appellant accused the complainant of giving Demonbreun two different "quotes to do the texture on the house" and asked him why "was [he] trying to charge her . . . different prices." The complainant saw that appellant "was raising his voice" and "getting angry." Appellant left the bathroom, and the complainant followed him out. But as the complainant exited the bathroom, he "saw [appellant] with his hands up, swinging" a two-by-four board at him. The complainant estimated that the two-by-four board was about three or four feet long.

The complainant's "first reaction was [to] raise [his] hand to cover" his face, and appellant struck the complainant's arm with the two-by-four board, breaking the arm. Appellant "knocked [the complainant] down" onto his hands and knees. All the complainant could remember was that appellant kept hitting him with the two-by-four board and that "[Dennee] was yelling at [appellant] to stop." Appellant kept striking the complainant "all over [his] body," on his head, arm, ribs and back. Then appellant chased the complainant out of the house, still wielding the two-by-four board. The complainant ducked into his sport utility vehicle ("SUV") and locked the doors.

The trial court admitted into evidence the audio recording of the assault that the complainant made with his cellular telephone. The recording begins before the complainant enters Demonbreun's garage and ends when the complainant gets intohis SUV. The complainant confirmed that he was the person who could be heard moaning on the recording and that the other speaker was appellant.

The complainant further testified that when he first got into his SUV, he stopped the audio recording so he could call for emergency assistance. The complainant thought he would be safe inside the SUV, but appellant "kept on swinging" the two-by-four board and broke the back passenger and driver's side windows on the SUV. Then the complainant saw appellant drop the two-by-four board in the grass, get into his car, and drive off. Dennee left the home a little later in her own car. Before she left, the complainant recorded her license plate number and gave it to the emergency-assistance operator. After completing his emergency-assistance call, the complainant called his wife to let her know what had happened.

According to the complainant, an ambulance and emergency medical technicians ("EMTs") arrived at Demonbreun's home first. They helped the complainant get out his SUV and put him inside the ambulance. A law enforcement officer also arrived and interviewed the complainant about the assault. The complainant was taken to a hospital in the ambulance.

The complainant explained that he sustained cuts and bruises and he was diagnosed with a severe concussion and a broken arm.² He was in bed and unable to walk for about two weeks. He and his family moved away from Demonbreun's neighborhood as soon as they could. The complainant continued to receive threatening telephone calls from appellant. When the complainant would answer, he would hear heavy breathing and what sounded like a gun cocking.

According to the complainant, after the assault, he was unable to resume physical labor and suffered from severe headaches. He could not go outside during the day "because the [sun]light was too bright." It took the complainant a year before he "g[o]t back on [his] feet" and was able to "start walking right" and "at least walk in the yard." The complainant was afraid to continue working as a contractor.

Houston Police Department ("HPD") Officer J. Heslop testified that on the evening of October 15, 2017, while on patrol, he was dispatched to a home at 451 Woodrail Street to respond to an emergency call about an assault that had just occurred. When he arrived, he found an ambulance at the scene and EMTs attending to the complainant.

According to Officer Heslop, the complainant had "his head wrapped," "dark bruising on his forehead and right shoulder," "some redness and scratching on hisribcage," and "some swelling on his left . . . forearm." The complainant was "complaining of injuries and just trying to figure what was going on." The complainant's wife and daughter were panicked, frantic, and worried about the complainant's condition. While at the scene, Heslop noticed that the rear passenger windows on the complainant's SUV, which was parked on the street, were cracked and "the glass was shattered."

Officer Heslop spoke briefly with the complainant and then spoke with his wife. The complainant's wife pointed to a piece of wood—a two-by-four board around two feet long with two nails sticking out of the end—that was by the front door of the home. The complainant's wife stated that the board was "involved in the assault." The trial court admitted into evidence the two-by-four board and photographs of the two-by-four board. Heslop stated that he considered the two-by-four board to be a deadly weapon.

Officer Heslop further testified that the complainant's injuries "seemed very severe." And based on his training and experience as a law enforcement officer, Heslop did not think the injuries had been...