Opinion filed April 26 , 201 2



## In The 

# Eleventh Court of Appeals

__________ 

### No. 11

- 10

- 00103

- CR

__________ TOMMIE SIMMONS , Appellant

V. STATE OF TEXAS , Appellee

On Appeal from the 411th District Court

Trinity County, Texas Trial Court Cause No . 9349

M E M O R A N D U M O P I N I O N

T he jury convicted Tommie Simmons of aggravated assault with a deadly weapon. The trial court sentenced him to confinement in the Institutional Division of the Texas Department of Criminal Justice for a term of eighteen years. Appellant challenges his con viction in three
issues. We affirm. Background Facts Jarvis Tyson testified that appellant’s brother, Terr a nce “T.T.” Simmons, came to his
ho u s e on the morning of August 1, 2008. Tyson and T.T. subsequently traveled to T.T.’s house
located in an area t hat they described as “the North S ide

. ” T hey shot dice at the house almost every day. Tyson testified that he had been at the same house on the previous night. Upon arriving at the house, Tyson and T.T. encountered appellant and T.T.’s other siblings. Tyson2

testified that appellant appeared to be “tripping” because it appeared he had been using “dope.” When appellant over heard a derogatory comment about his sister, he stated
, “I’m going to get my gun.” Tyson testified that appellant then returned with a gun and began saying
, “I’ll shot [ sic ] you , ” repeatedly to Tyson. Appellant subsequently shot Tyson three times , including at
least one time in the abdomen . Afterwards, appellant told Tyson
, “ D ie
, hoe ass n

---- r.” Tyson fled the scene by running towar d a nearby highway. An off

- duty TDC prison guard found him collapsed in the middle of the highway with blood coming from his abdomen. The guard transported Tyson to the local hospital in the back of his pickup. Tyson testified that he was subsequently “ Life Flighted” to a Tyler hospital where he remained hospitalized for twenty

- four or twenty

- five days. He further testified that he was unconscious for eighteen of
those days. Sufficiency of the Evidence Appellant challenges the legal and factual sufficiency of the evidence in his first issue. We note at the outset of our analysis that the Texas Court of Criminal Appeals has now held in
Brooks v. State , 323 S.W.3d 893 (Tex. Crim. App. 2010), that there is “no meaningful distinction
between the Jackson v. Virginia 1 legal

- sufficiency standard and the Clewis 2 factual

- sufficiency standard”; that the Jackson v. Virginia 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”; and that “[a]ll other cases to the contrary, including Clewis , are overruled.” Brooks , 323 S.W.3d at 895, 902, 912 (footn otes added). Accordingly, a challenge to the factual sufficiency of the evidence is no longer viable. We also note that appellant did not have the benefit of the opinion in Brooks when
this case was br iefed. We will review appellant’ s factual sufficiency challenge under the legal sufficiency standard set forth in Jackson v. Virginia

. Under this standard, we must 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 esse ntial elements of the crime beyond a reasonable doubt. Jackson v. Virginia , 443 U.S. 307; Brooks , 323 S.W.3d at 899. In conducting a legal sufficiency review, we are required to defer to the jury ’ s role as the sole judge of the credibility of the witnesses and the weight their testimony is to be afforded.

1 Jackson v. Virginia , 443 U.S. 307 (1979).

2 Clewis v. State , 922 S.W.2d 126 (Tex. Crim. App. 1996).3

Brooks , 323 S.W.3d at 899. This stand ard 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 fact s. Jackson v. Virginia , 443 U.S. at 319; Clayton v. State , 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007). When the record supports conflicting inferences, we presume that the factfinder resolved the conflicts in favor of the prosecution and
, therefore
, defe r to that
determination. Jackson v. Virginia , 443 U.S. at 326; Clayton , 235 S.W.3d at 778. Each fact need not point directly and independently to the guilt of the appellant, as long as the cumulative force of all the incriminating circumstances is suffic ient to support the conviction. Hooper v.
State , 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). Appellant bases his evidentiary challenge on a comment that Tyson made during cross

examination wherein he stated that he did n o t believe appellant knew what he was doing because appellant was on drugs at the time. Appellant contends that there is no evidence of the requisite intent based on Tyson’s testimony that appellant did not know what he was doing. We disagree. As noted p reviously, appellant made statements at the time of the shoot ing expressing his intent to shoot Tyson. Furthermore, appellant’s reliance on voluntary intoxication to negate the
element of intent is prohibited by T EX

. P ENAL C ODE A NN

. § 8.04(a) (West 2011 )

. Voluntary
intoxication is not a defense to the commission of a crime
, and evidence of an accused’s intoxi

cation “does not negate the elements of intent or knowledge.” Hawkins v. State , 605 S.W.2d 586, 589 (Tex

. Crim. App. 1980). Appellant’s first issue is overruled. Oral Comment by Trial Court Appellant directs his second and third issues at an oral comment made by the trial judge at the conclusion of the reading of the charge of the court. The trial judge read the portion of the charge preceding the verdict form in its entirety. When the trial judge reached the verdict form,
he stated: “ A nd then the last page has three blanks and you will need to answer two of those. And I’ll let the lawyers argue their respective positions about that.” The verdict form provided
as follows:
VERDICT

We, the Jury, find the Defendant, Tommie Simmons, guilty of the offense of Aggravated Assault with a Deadly Weapon as charged in the indictment.

____________________________ Foreperson4 Do you find from the evidence beyond a reasonable doubt that the Defendant used or exhibited a deadly weapon, to

- wit: a firearm, if he did during the commission of the offense alleged in the indictment?

ANSWE R: “We do” or “We do not”

ANSWER: ___________________

____________________________ Foreperson

OR
We, the Jury
, find the Defendant, Tommie Simmons, not guilty.

_____________________________ Foreperson

Appellant directs his complaint to the trial judge’s comment that t he jury would need to answer
two of the blanks. He alleges that this comment was erroneous because the jury would not need to answer two of the blanks if it found appellant not guilty. He contends in his second issue that
this oral comment constituted an erroneous statement of the law
, and he contends in his third
issue that it constituted an improper commen t on the weight of the evidence

. When an appellant alleges jury charge error on appeal, we first determine whether there is any error in the jury charge. Hutch v. State , 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If we conclude there is jury charge error, we must determine if the error caused sufficient harm to
warrant reversal. Id . at 170

– 71. The extent of harm requiring reversal is dictated by whether the error was properly preserved. Id . at 171. Appellant acknowledges on appeal that he did not object to the trial judge’s comment at the time it was made. Where the defendant failed to object to the error at trial, we may reverse only if the record shows that the error was so egregiously harmful that the defendant was denied a fair and impartial trial. Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 198 5 ). The State argues that the trial judge’s comment did not constitute error because the jury
could have answered two blanks on the verdict form and still found appellant not guilty. The State premises this argument on the co ntention that the jury could have answered “ [w] e do not”5

on the deadly weapon question
, in addition to finding appellant not guilty. We disagree with the State’s contention. As set forth above, the deadly weapon question was grouped together with the “gu ilty” question. This fact is evidenced by the bold “OR” following the deadly weapon question. The jury would have no reason to address the deadly weapon question if it found appellant not guilty. Accordingly, the trial judge’s comment referencing the ne ed to answer two questions on the verdict form constituted a comment on the weight of the evidence because it
assumed the truth of a controverted issue. Whaley v. State , 717 S.W.2d 26, 32 (Tex. Crim. App. 1986). In this regard, the jury would need to ans wer two questions on the verdict form only if it found appellant g uilty of the charged offense. Having found error
, we must now determine if it resulted in egregious harm. Egregious harm includes errors affecting the case’s foundation, denying the defend ant a valuable right, significantly affecting a defensive theory, or making the case for guilt or punishment clearly and substantially more compelling. Hutch , 922 S.W.2d at 171. In determining the degree of harm, we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any
other relevant information from the entire record. Taylor v. State , 332 S.W.3d 483, 489

– 90 (Tex.
Crim. App. 2011); Hutch , 922 S.W.2d at 171; Almanza , 686 S.W.2d at 171. Errors that result in egregious harm are those that affect the very basis of the case, deprive the defendant of a valuable right, vitally affect the defensive theory, or make a case for conviction clearly and significantly more persuasive. Taylor , 332 S.W.3d at 490; Hutch , 922 S.W.2d at 171; Almanza
, 686 S.W.2d at 172.
We first note the circumstances surrounding the oral co mment. The trial judge made the

comment a t the conclusion of the reading of the court’s charge essentially as an aside to the reading of the court’s charge and the impending closing arguments to be given to the attorneys.
The comment was not so inflammat ory as to provoke a n objection by trial counsel or a reference to it during closing argument. Furthermore, the written charge of the court contained the following application provision:

Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that on or about the 1 st day of August, 2008, in Trinity County, Texas
, the defendant, TOMMIE SIMMONS, did then and there intentionally, knowingly or recklessly cause serious bodily injury to Jarvis Tyson by shooting hi m with a firearm, or the defendant did intentionally, knowingly, or recklessly cause bodily injury to Jarvis Tyson and did then and there use or exhibit a deadly weapon, to

- wit: a firearm, during the commission of said assault,6

then you will find the defen dant guilty of aggravated assault as charged in the indictment.
If you do not so find, or if you have a reasonable doubt thereof, you will find the defendant “Not Guilty.”

Accordingly, the written instructions that accompanied the jury into its deliberat ions did not
contain th e error presented by the trial judge’s oral comment . The jury deliberated for

a pproximately twenty minutes without presenting any questions to the trial court about its responsibilities. In light of the overwhelming weight of the evidence presented at trial and the seemingly innocuous nature of the trial judge ’s oral comment, we conclude that appellant did not suffer egregious harm. We note in this regard that a timely objection and accom panying curative instruction would have readily corrected the trial judge’s erroneous comment. See Ladd v. State
, 3 S.W.3d 547, 567 (Tex. Crim. App. 1999) . We conclude that the comment did not deprive appellant of a fair and impartial trial. Appellant’s second and third issues are overruled. This Court’s Ruling The judgment of the trial court is affirmed.

TERRY McCALL
JUSTICE

April 26 , 2012 Do not publish. See T EX

. R. A PP

. P. 47.2(b).
Panel consists of: Wright, C.J., McCall, J., and Kalenak , J.