author: FELIPE REYNA, Justice. TOM GRAY, Chief Justice, BILL VANCE, Justice,

text:
    Julius ARCHIE, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00153-CR.
    Court of Appeals of Texas, Waco.
    Nov. 2, 2005.
    Rehearing Overruled Jan. 3, 2006.

      John A. Kuchera, Waco, for appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

FELIPE REYNA, Justice.

A jury convicted Julius Archie of family violence assault (a felony) and misdemean- or assault. The jury assessed his punishment at ten years in prison for the felony and one year in jail for the misdemeanor. Archie contends in two issues that: (1) he was punished twice for the same offense in violation of the prohibition against double jeopardy; and (2) the court abused its discretion by denying his motion for mistrial during the punishment phase when a prosecutor commented on his failure to testify. We will affirm the convictions, reverse the punishment, and remand for a new punishment hearing.

Background

The indictment contains three counts charging Archie with: (1) aggravated assault; (2) family violence assault elevated to a felony by a prior family violence assault; and (3) unlawful restraint. Gina Columbus is the complainant in all three counts, which were all alleged to have occurred on the same date.

Viewed in a light most favorable to the verdict, the evidence reflects that Columbus picked Archie up at the county fair and drove him home. Columbus waited in the car while Archie went inside to change clothes. When Archie returned to the car, he began talking with her about a man she had previously dated. Archie was agitated. He hit Columbus in the head with enough force to cause her head to hit the driver’s side window. The impact left her head cut and bleeding.

Archie changed places with Columbus and began driving. Columbus began to feel dizzy. Archie drove to Columbus’s house and tried to clean her up. He refused to allow her to leave. He struck her repeatedly, grabbed her by the hair, and tried to choke her with his arm. He also tried to choke her with various objects including a bed sheet and a cable cord. He tied her hands and feet behind her back, rolled her up in some foam, stuffed a teddy bear in her mouth, put a sheet over her head, and left the house. He later returned to argue some more with her.

Archie testified in his own defense. He insisted that the injuries Columbus sustained in the car were accidental. He agreed that they fought in her house but denied the allegations that he had choked her or restrained her in any manner.

The court charged the jury on the lesser-included offense of misdemeanor assault as an alternative to the aggravated assault charge. The jury convicted Archie of the lesser-included assault charge, convicted him of family violence assault as charged, and acquitted him of unlawful restraint.

During punishment, the State called a former girlfriend of Archie’s, Bria Alexander, and his current girlfriend, Desiree Briscoe, to testify. Alexander testified that Archie became violent during their relationship, choked her, and pulled her hair on “many” occasions. She also testified that he tied her up once with a telephone cord, put her in a closet, and put a blanket on top of her.

Briscoe testified that Archie is not violent although they have gotten in arguments on occasion. She denied that he has ever choked her, but she did recall one occasion when he held her against the wall.

Archie called a former girlfriend, Brandy Dunlap, who testified that she had dated him for more than five years and he had never been violent toward her. Archie also called his father who testified that he would encourage Archie to participate in anger management counseling if he received community supervision.

The jury assessed Archie’s punishment as indicated above.

Double Jeopardy

Archie contends in his first issue that court abused its discretion by failing to require the State to elect which of the two assault counts it would proceed on, which resulted in his being punished twice for the same offense.

“An election is required when an indictment alleges the commission of a single offense but the State offers evidence at trial that the accused committed the offense alleged more than once.” Moore v. State, 143 S.W.3d 305, 312 (Tex.App.-Waco 2004, pet. ref'd) (citing Scoggan v. State, 799 S.W.2d 679, 680 n. 3 (Tex.Crim.App.1990); Brantley v. State, 48 S.W.3d 318, 322 n.1 (Tex.App.-Waco 2001, pet. ref'd)).

The Double Jeopardy Clause of the Fifth Amendment prohibits the State from punishing a defendant twice for the same crime. See Sattazahn v. Pa., 537 U.S. 101, 106, 123 S.Ct. 732, 736, 154 L.Ed.2d 588 (2003); Lopez v. State, 108 S.W.3d 293, 295-96 (Tex.Crim.App.2003). However, this prohibition is not invoked when a defendant is convicted and punished for the repeated commission of the same offense on distinct occasions. See Campbell v. State, 149 S.W.3d 149, 155 (Tex.Crim.App.2004); Patterson v. State, 96 S.W.3d 427, 432 (Tex.App.-Austin 2002), aff'd, 152 S.W.3d 88 (Tex.Crim.App.2004).

Here, the indictment alleges and the evidence shows two separate assaults: (1) the assault in the car; and (2) the assault in the house. Thus, the State was not required to make an election, and Archie was not punished twice for the same offense. See Patterson, 96 S.W.3d at 432.

Accordingly, we overrule Archie’s first issue.

Motion For Mistrial

Archie contends in his second issue that the court abused its discretion by overruling his motion for mistrial after a prosecutor commented on his failure to testify in closing argument during the punishment phase.

After the punishment evidence was concluded, the court read the punishment charge to the jury. Among other things, the charge instructed the jury not to consider Archie’s failure to testify “for any purpose whatsoever.”

The argument at issue follows:

PROSECUTOR: I think you have also learned he has no respect for women. You have heard from three women now. And two of them tell you, frighteningly, the same story; that things are okay in the beginning of a relationship and then things start to go downhill, and that he strangles them and he ties them up. That is his MO. That’s what he does. You’ve heard that now from two people. You heard no evidence to the contrary as to Bria Alexander, the second victim. You heard no denial. That was just accepted.
DEFENSE COUNSEL: Excuse me, Your Honor. I object to counsel’s comment on the defendant’s failure to testify by that comment, that you have heard no denial about that.
THE COURT: Instruct the jury that they will — I sustain the objection and instruct the jury that they will follow the Court’s instructions.
DEFENSE COUNSEL: Move for mistrial based on that.
THE COURT: Overruled.

The State does not seriously challenge Archie’s assertion that the statement at issue was an erroneous comment on his failure to testify. Apparently, the trial court did not either as it promptly sustained Archie’s objection. Therefore, we limit our inquiry to the issue of whether the court’s instruction cured the prejudicial effect of the improper comment and, if not, whether this error harmed Archie.

To determine whether the court’s instruction cured the prejudicial effect of the improper comment, “[w]e balance three factors: (1) the severity of the misconduct (prejudicial effect), (2) curative measures, and (3) the certainty of the punishment assessed absent the misconduct (likelihood of the same punishment being assessed).” Hawkins v. State, 135 S.W.3d 72, 77 (Tex.Crim.App.2004).

Here, the prosecutor directly commented on Archie’s failure to testify. See Goff v. State, 931 S.W.2d 537, 548 (Tex.Crim.App.1996) (comment is direct when it refers to evidence which can come from only the defendant); Graff v. State, 65 S.W.3d 730, 737 (Tex.App.-Waco 2001, pet. ref'd) (same); Weyandt v. State, 35 S.W.3d 144, 157 (Tex.App.-Houston [14th Dist.] 2000, no pet.) (same). The prejudicial effect of a direct comment may be more difficult to cure than that arising from an indirect comment. Montoya v. State, 744 S.W.2d 15, 37 (Tex.Crim.App.1987); Roberson v. State, 100 S.W.3d 36, 42 (Tex.App.-Waco 2002, pet. ref'd); Barnum v. State, 7 S.W.3d 782, 795 (Tex.App.-Amarillo 1999, pet. ref'd). However, the prosecutor did not persist in pursuing this improper argument. See Roberson, 100 S.W.3d at 42 (considering persistence and flagrancy of prosecutor’s conduct).

The court’s instruction was very generic and did not direct the jury to disregard the improper argument. In fact, the court’s instruction was even less definitive than another which we have found inadequate. See Veteto v. State, 8 S.W.3d 805, 811-12 (Tex.App.-Waeo 2000, pet. ref'd) (“simplicity of the trial courts instructions [‘you’ll disregard’] when constitutional guarantees were at stake ... did not effectively cure the prejudice”).

True, the court had not long before read to the jury the nineteen paragraphs of instructions contained in the punishment charge, and one paragraph of these instructions plainly prohibited the jury from considering Archie’s failure to testify. However, the instructions in the punishment charge were not given in response to the prosecutor’s improper argument. A more direct instruction would have been far more effective to cure the prejudicial effect of the improper argument. Cf. Brown v. State, 92 S.W.3d 655, 668-69 (Tex.App.-Dallas 2002) (in similar situation, court specifically instructed jurors to disregard prosecutor’s improper argument), aff'd, 122 S.W.3d 794 (Tex.Crim.App.2003).

With regard to the certainty of the punishment assessed absent the improper comment, we conclude that, due to the strength of the State’s punishment case, it is likely that the same punishment would have been assessed regardless of the improper comment. See Hawkins, 135 S.W.3d at 85; Roberson, 100 S.W.3d at 42-43.

In summary, the prosecutor directly commented on Archie’s failure to testify, and the court did not directly or effectively instruct the jury to disregard this improper comment. Because of the directness of the improper comment and the generic nature of the curative instruction, we hold that the instruction did not cure the prejudicial effect of the comment. We now determine whether this error requires reversal.

Because the prosecutor commented on Archie’s failure to testify, the error is constitutional. Roberson, 100 S.W.3d at 43-44. Accordingly, the error requires reversal unless we “determinen beyond a reasonable doubt that the error did not contribute to the ... punishment.” Id. (quoting Tex.R.App. P. 44.2(a)). To assess harm, we consider:

• the source and nature of the error;
• the extent to which the State emphasized it;
• the probable collateral implications of the error;
• the weight a juror would probably place upon it, giving consideration to whether the record contains “overwhelming evidence supporting the finding in question”; and
• whether declaring the error harmless would encourage the State to repeat it with impunity.

Roberson, 100 S.W.3d at 44.

The prosecutor was the source of the improper comment, and her comment ignored one of the basic tenets of the Bill of Rights, the Fifth Amendment’s prohibition against using the silence of an accused against him. See id. Because the prosecutor made the comment only once, she did not unduly emphasize the error.

The probable collateral implication to be drawn from the comment was that Alexander testified truthfully that her relationship with Archie turned violent over time. Id. at 45.

Due to the strength of the State’s punishment evidence, we cannot say that the jury placed undue weight on the improper comment. Cf. id. (defendant had no prior criminal history and put on evidence that his family would assist him with rehabilitative services he could obtain on community supervision).

Finally, we examine whether declaring the improper denial of Archie’s mistrial motion harmless will encourage the State to repeat its improper argument with impunity. We conclude that it will not. The improper comment here appears to have been an inadvertent one which was made under the unique circumstances of this particular trial. Cf. id.

In summary, the nature and source of the prosecutor’s comment steer us toward a conclusion that the court’s erroneous denial of Archie’s motion for mistrial was harmful. The collateral implications of the improper argument support this conclusion as well because the jury was faced with conflicting testimony about whether Archie’s relationships with women generally ended in violence. This is a critical issue for a jury to consider in determining what punishment Archie should receive for assaulting his girlfriend.

Although this is a close case, we cannot say beyond a reasonable doubt that the error did not contribute to Archie’s punishment. See Tex.R.App. P. 44.2(a); Roberson, 100 S.W.3d at 45. Accordingly, we sustain Archie’s second issue.

We affirm the judgment of conviction. We reverse that portion of the judgment assessing punishment and remand this cause to the trial court for further proceedings consistent with this opinion. See Tex.Code CRiM. PeoC. Ann. art. 44.29(b) (Vernon Supp.2004-2005); Roberson, 100 S.W.3d at 45.

Chief Justice GRAY concurring and dissenting.

Justice VANCE concurring and dissenting.

TOM GRAY, Chief Justice,

concurring and dissenting.

Julius Archie was convicted of assault and assault — family violence, enhanced. He was sentenced to one year in jail for the assault and to ten years in prison for the enhanced family violence assault. Because the Double Jeopardy Clause is not implicated in this case and because the trial court did not err in overruling Archie’s motion for mistrial, I would affirm the trial court’s judgment in its entirety.

Double Jeopardy

In stating his first issue, Archie contends the trial court abused its discretion in failing to require the State to elect whether to proceed on count 1 or count 2 once it became clear that the State had presented the same evidence to support both counts, which resulted in, as Archie claims, Archie being punished twice for the same conduct. However, Archie’s entire argument is devoted only to the notion that he was punished twice for the same conduct in violation of the Double Jeopardy Clause. This is the argument to be addressed.

Archie argues that because the court and the State agreed that his conduct was the same for both charged offenses, he was punished twice for the same offense. Archie mischaracterizes the conversation between the trial court and the State. And, although Archie cites Hawkins for the proposition that the allowable unit of prosecution is the victim, he fails to make any connection between Hawkins and his convictions. See Ex parte Hawkins, 6 S.W.3d 554 (Tex.Crim.App.1999). Nevertheless, Hawkins is distinguishable because it involved one act of theft being charged as two robbery offenses when two victims were involved. That is not the case here.

Archie first assaulted the victim in her car while she was driving. Archie hit her on the right side of her head which caused her to strike the left side of her head on the window of the car. The left side of her head was cut. The next assault began after 1) Archie took over driving, 2) they arrived at the victim’s house where both she and Archie attempted to clean the cut, and 3) the victim sat on the end of the bed while Archie argued with her. Clearly, two distinct assaults occurred, and the Double Jeopardy Clause is not implicated. See Blockburger v. United States, 284 U.S. 299, 301-302, 52 S.Ct. 180, 76 L.Ed. 306 (1932); Hawkins, 6 S.W.3d at 557, fn. 8. Archie’s first issue is properly overruled, and I concur in the affirmance of his conviction.

Motion for Mistrial

In his second issue, Archie contends the trial court erred in overruling his motion for mistrial after the State improperly commented on Archie’s failure to testify at the punishment phase of the trial. During the punishment phase, the trial court sustained an objection to a portion of the State’s argument which Archie characterized as a comment on his failure to testify. An instruction was given to the jury, and Archie’s motion for mistrial was overruled.

Although neither Archie nor the State cite this case, last year, the Court of Criminal Appeals set the standard for reviewing the denial of a motion for mistrial following a sustained objection to improper argument at the punishment phase of a trial. Hawkins v. State, 135 S.W.3d 72 (Tex.Crim.App.2004). When the trial court sustains an objection and grants a request for an instruction for the jury to disregard but denies the motion for mistrial, the proper issue is whether the refusal to grant the mistrial was an abuse of discretion. Id. at 76-77. To determine whether the trial court abused its discretion in denying the mistrial, we balance three factors: 1) the severity of the misconduct, 2) curative measures, and 3) the certainty of the punishment assessed absent the misconduct. Id. at 77.

During the punishment phase, the prosecutor argued,

That’s what he does. You’ve heard that now from two people. You heard no evidence to the contrary as to Bria Alexander, the second victim. You heard no denial. That was just accepted.

The argument could be interpreted as a comment on Archie’s failure to testify. However, it could also be interpreted as a statement that there was no denial of abuse from the witness, a former girlfriend of Archie’s, unlike Archie’s current girlfriend who denied abuse even though Archie would pull her back if she walked away during an argument and had pinned her up against the wall on previous occasions during arguments. The prosecutor did not make any more comments of this nature. In sustaining Archie’s objection, the trial court gave an instruction that the jury would follow the court’s instructions. In the charge to the jury, the jury was instructed not to refer to or allude to Archie’s decision not to testify and not to take his decision into consideration for any purpose as a circumstance against him. Although Archie was sentenced to the maximum punishment for each offense, the jury heal’d about Archie’s seven prior misdemeanor convictions, which included a violation of a protective order conviction and an assault conviction, and one prior felony conviction. Archie’s past history is a more likely reason for the length of the sentences than the statement by the prosecutor.

Thus, the trial court did not abuse its discretion in overruling Archie’s motion for mistrial, and his second issue should be overruled.

Responding to the Dissent of Justice Vance

In his dissenting opinion, Justice Vance has opined that he would reverse the conviction for assault-family violence. As he notes in his opinion, the issue on which he would reverse the conviction was not identified by the parties, much less presented or briefed by the parties. We have been told repeatedly that it is improper for us to identify, brief, and decide an issue not raised. Neal v. State, 150 S.W.3d 169, 180 (Tex.Crim.App.2004); Gerron v. State, 97 S.W.3d 597 (Tex.Crim.App.2003); Hailey v. State, 87 S.W.3d 118, 121-122 (Tex.Crim.App.2002). There may be a time, place, and manner in which this issue can be properly raised and addressed, but the method used by Justice Vance is not it. The parties have not had the opportunity to frame and brief the issue. This violates one of the fundamental tenants of the adversarial form of our judicial system because Justice Vance has shed his judicial robe and has become the advocate for the defendant. Until the issue is properly presented, and to maintain my proper role as a judge, it is necessary that I refrain from deciding the issue raised by Justice Vance.

Conclusion

Having overruled each issue on appeal, I would affirm the trial court’s judgment in all respects.

BILL VANCE, Justice,

concurring and dissenting.

I agree that the trial court erred in denying Archie’s motion for a mistrial and that the trial court’s error was harmful. Thus I join in reversing the judgment assessing punishment for felony aggravated assault and remanding that cause to the trial court. However, because the trial court’s jury instruction created a new offense, I would also reverse the judgment of conviction of felony family violence assault. Because a majority affirms that judgment, I respectfully dissent.

I acknowledge that Archie did not object to the error in the charge and has not raised the issue on appeal. However, it is well settled that we have the authority to review unpreserved fundamental charge error. Saldano v. State, 70 S.W.3d 873, 887 (Tex.Crim.App.2002) (citing article 36.19 of the Code of Criminal Procedure and Almanza v. State, 686 S.W.2d 157 (Tex.Crim.App.1984)); Olivas v. State, 153 S.W.3d 108, 114 (Tex.App.-Waco 2004, pet. filed). A jury charge is fundamentally defective when it authorizes conviction for conduct which is not an offense. Flores v. State, 48 S.W.3d 397, 402 (Tex.App.-Waco 2001, pet. ref'd) (citing Jackson v. State, 591 S.W.2d 820, 824 (Tex.Crim.App.1979)). Review of the fundamental charge error in this case would not violate the rules about procedural default.

“Conduct does not constitute an offense unless it is defined as an offense by statute, municipal ordinance, order of a county commissioners court, or rule authorized by and lawfully adopted under a statute.” Tex. Pen.Code Ann. § 1.03(a) (Vernon 2003). Section 22.01 of the Penal Code provides that an assault under that section is a third-degree felony if the offense is committed against a member of the defendant’s family or household, if it is shown on the trial of the offense that the defendant has been previously convicted of such an assault against a member of his or her family or household. Id. § 22.01(b)(2) (Vernon Supp.2004-05). Section 22.01(e) states that “family” has the meaning assigned by Section 71.003 of the Family Code and that “household” has the meaning assigned by Section 71.005 of the Family Code. Id. § 22.01(e) (Vernon Supp. 2004-05).

Section 71.003 of the Family Code states that “family” includes “individuals related by consanguinity or affinity ..., individuals who are former spouses of each other, individuals who are the parents of the same child, without regard to marriage, and a foster child and foster parent, without regard to whether those individuals reside together.” Tex. Fam.Code Ann. § 71.003 (Vernon 2002). Section 71.005 defines “household” as “a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.” Id. § 71.005 (Vernon 2002).

The court’s charge correctly contained both of the above definitions. However, the court additionally charged: “Member of a household includes a person who previously lived in a household.” The trial court thus erroneously incorporated the definition of “member of a household” under section 71.006 of the Family Code into the charge. See id. § 71.006 (Vernon 2002).

At least one other court of appeals has said, citing section 71.006, that the State may prove a previous conviction of assault on a member of a household for purposes of 22.01(b)(2) by showing that the defendant and the victim had lived in the same dwelling before the time of the assault. Goodwin v. State, 91 S.W.3d 912, 920 (Tex.App.-Fort Worth 2002, no pet.).

I find nothing to indicate a legislative intent to expand the definition of “household” or to incorporate the definition of “members of a household” in section 71.006 of the Family Code into section 22.01 of the Penal Code. If the legislature so intended, it could have either explicitly referenced 71.006 or referred to chapter 71 of the Family Code generally. The statute does neither. Section 22.01 of the Penal Code plainly refers to one, and only one, section in the Family Code to define “household” for the purposes of section 22.01. That section is section 71.005. By allowing the trial court to charge the jury using a section of the Family Code not mentioned by the legislature, the court has created a new offense: it is a crime to assault a person with whom the actor formerly lived.

When error in the charge was not the subject of a timely objection to the trial court, reversal will occur only when the error was “fundamental” and “so egregious and created such harm that the defendant ‘has not had a fair and impartial trial.’ ” See Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (on rehearing). An error results in egregious harm if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex.Crim.App.1996). The harm is determined by considering the entire charge; the state of the evidence, including contested issues and the weight of the probative evidence; the argument of counsel; and any other relevant information revealed by the record as a whole. Mann v. State, 964 S.W.2d 639, 641 (Tex.Crim.App.1998).

Considering the evidence at trial, I do not believe that Archie could have been convicted of family violence assault if the jury had been charged correctly. There is no evidence that Archie and the complaining witness were “family,” as defined by section 71.008 of the Family Code. There is no evidence that the two were related by blood or marriage or that they were both parents of the same child.

Under the plain language of sections 22.01 and 71.005, a person is a member of a “household” if the person is a member of “a unit composed of persons living together in the same dwelling, without regard to whether they are related to each other.” Tex. Fam.Code Ann. § 71.005 (emphasis added). The complaining witness testified that, at the time of the offense, she was living in her mother’s house and Archie was living in his father’s house. She testified that she had bought another house, that she had furniture in that house, but that she did not yet live in that house. There was no evidence that Archie was living anywhere but his father’s house. Thus, there was no evidence that the two were living together in the same dwelling at the time of the offense.

There was, however, evidence that Archie had previously lived with the complaining witness. The complaining witness testified that Archie moved in with her and lived with her for an unspecified period of time before she moved into her mother’s house. This is the only evidence of Archie and the complaining witness ever having lived together.

Without the court’s erroneous instruction that “member of a household” includes persons who previously lived in a household, a rational jury could not have convicted Archie of the offense of family violence assault. Thus, the error “affects the very basis of the case” and is “fundamental” and “egregious.” Hutch, 922 S.W.2d at 171.

Because the jury charge was fundamental error and Archie was harmed by the error, I would also reverse the judgment of conviction of family violence assault (enhanced) and remand that cause for a new trial.

      . The Fifth Amendment provides in pertinent part, "nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb.” U.S. Const. Amd. V.

      . Chief Justice Gray concurs in the affir-mance of the judgment of conviction but dissents from the reversal of the judgment assessing punishment.

      . Justice Vance dissents from the affirmance of the judgment of conviction but concurs in the reversal of the judgment assessing punishment.

      . For example, section 25.07 of the Penal Code, which deals with violations of protective orders, gives "family,” "household,” and "members of a household” the “meanings assigned by Chapter 71, Family Code.” Tex. Pen.Code Ann. § 25.07(b)(1) (Vernon Supp. 2004-05). In 1999, the legislature amended section 25.07(b) to give those three terms the meanings assigned by "Chapter 71, Family Code” and deleted the statute’s reference to section 71.01. Acts, 76th Leg., R.S., ch. 62, § 15.02, 1999 Tex. Gen. Laws 127, 358. In the same section of the same act, the legislature amended section 42.072(c) of the Penal Code to give those terms the meanings assigned by "Chapter 71, Family Code” and deleted the reference to section 71.01. Id. However, again in the same section of the same act, the legislature chose, for the purposes of sections 22.01 and 46.13(f) of the Penal Code, to define "family” by reference to the definition under 71.003 of the Family Code.
      Also in 1999, the legislature amended section 22.01(b)(2) (now section 22.01(b)(3)) to include not only members of the defendant's family but also the defendant's household. Acts, 76th Leg., R.S., ch. 1158, § 1, 1999 Tex. Gen. Laws 4063, 4063. "Family” and "Household” were not given the meanings assigned by Chapter 71 generally, but rather were given the meanings under the specific sections 71.003 and 71.005, respectively. Id. Section 71.006 of the Family Code was then in existence, but the legislature did not assign a definition of "member of a household” or refer to section 71.006. Id.

      . Section 71.006 of the Family Code does not contain a time limit or specify when the actor and complainant must have lived together.


source: Caselaw Access Project

author: BILL VANCE, Justice.

license: Public Domain

text:
    Mark J. KEARNEY, Appellant, v. The STATE of Texas, Appellee.
    No. 10-04-00096-CR.
    Court of Appeals of Texas, Waco.
    Nov. 2, 2005.

      Roy E. Greenwood, Jr., Austin, for appellant.
    Bill R. Turner, Brazos County Dist. Atty., Bryan, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

BILL VANCE, Justice.

Asserting four issues, Appellant Mark Kearney challenges his conviction of attempted capital murder. We will affirm.

Background

Shirley Schultz, the owner of a Bryan Western Union store, testified that while at the store on the evening of May 13, 2003, she heard gunshots in the store lobby. She saw a masked man, waving a gun and demanding money. Schultz was able to run out the back door, go to a neighboring house, and call 9-1-1 and report the armed robbery in progress.

Dean Swartzlander, a Bryan police officer, testified that he was on duty that evening when he heard a “robbery in progress” call on his radio. He was two blocks away from the Western Union store and immediately drove there. As he arrived at the store, he noticed a white vehicle driving away. A civilian pointed at the white vehicle and indicated that it was involved in the robbery. Swartzlander pursued it through a residential neighborhood until the vehicle suddenly stopped at an intersection. The driver and a backseat passenger began to get out. As Swartzlander opened his patrol car door, the backseat passenger began shooting at Swartzlander with a handgun, with one shot hitting his patrol car door. Swartzlander dropped to the ground and retreated to the back of his patrol car. From there, he fired two shots at the shooter, who was fleeing on foot.

Walt Melnyk, another Bryan police officer, arrived and joined Swartzlander in the foot pursuit. They found Kearney behind a nearby restaurant; he was lying on the ground and suffering from gunshot wounds. Kearney was arrested and taken to a local hospital, where his gunshot wounds were treated. A short time later, a detective took a recorded statement from Kearney in which he admitted that he was trying to shoot Swartzlander.

Kearney was indicted for the felony offense of attempted capital murder. A jury found him guilty, and the trial court assessed punishment at seventy-five years’ imprisonment.

Issues

Kearney’s first issue asserts a Confrontation Clause challenge to the 9-1-1 tape. His other three issues relate to the volun-tariness of the recorded confession taken at the hospital. Kearney does not challenge the sufficiency of the evidence.

9-1-1 Tape

The dispatcher who took the call identified the tape of the 9-1-1 call, his voice, and Schultz’s voice. Schultz identified her voice, the dispatcher’s voice, and the voices of the neighbors (Allen and Janet Kenne-more), whose house she had fled to and called 9-1-1 from. Schultz reported the ongoing robbery, including that a shot had been fired and two of her employees were still in the store. The Kennemores’ mostly inaudible voices can be heard in the background. Mr. Kennemore can be heard in the background saying “he [the alleged robber] fired a shot,” and Mrs. Kennemore can be heard saying “they’re chasing him ... he ran down that way ... the cops are chasing him ... no, they’re chasing him in the car.” Schultz then said that she was going back to her office and handed the phone to Mrs. Kennemore, who said that she had just seen the robber driving down the street and then that there was shooting taking place.

The tape of the 9-1-1 call was admitted over Kearney’s objection that his Sixth Amendment confrontation rights were being violated because the State was not calling the Kennemores as witnesses and their statements were on the 9-1-1 tape. We review de novo the trial court’s ruling that the admission of the 9-1-1 tape did not violate Kearney’s Confrontation Clause rights. McClenton v. State, 167 S.W.3d 86, 93 (Tex.App.-Waco 2005, no pet. h.).

The Sixth Amendment to the United States Constitution provides that “[i]n all criminal prosecutions, the accused shall enjoy the right to ... be confronted with the witnesses against him.” U.S. Const. amend. VI. The Confrontation Clause’s central concern is to ensure the reliability of the evidence against a criminal defendant by subjecting it to rigorous testing in the context of an adversarial proceeding before the trier of fact. Lilly v. Virginia, 527 U.S. 116, 123-24, 119 S.Ct. 1887, 1894, 144 L.Ed.2d 117 (1999). The United States Supreme Court recently held that “testimonial statements” of witnesses absent from trial are admissible over a Sixth Amendment Confrontation Clause objection only when the declarant is unavailable and only where the defendant has had a prior opportunity to cross-examine. Crawford v. Washington, 541 U.S. 36, 59, 124 S.Ct. 1354, 1368-69, 158 L.Ed.2d 177 (2004).

The threshold issue in our Crawford analysis is whether the statements were testimonial. Spencer v. State, 162 S.W.3d 877, 879 (Tex.App.-Houston [14th Dist.] 2005, pet. filed). The Crawford Court did not define “testimonial,” but it noted three formulations of “core” testimonial evidence: (1) “ex parte in-court testimony or its functional equivalent,” such as affidavits, custodial examinations, prior testimony not subject to cross-examination, or “similar pretrial statements that declarants would reasonably expect to be used prosecutorially,” (2) “extrajudicial statements” of the same nature “contained in formalized testimonial materials,” and (3) “statements that were made under circumstances which would lead an objective witness reasonably to believe that the statement would be available for use at a later trial.” Crawford, 541 U.S. at 51-52, 124 S.Ct. at 1364. The Court further explained that the term “testimonial” applies “at a minimum to prior testimony at a preliminary hearing, before a grand jury, or at a former trial; and to police interrogations.” Id. at 68, 124 S.Ct. at 1374.

Whether statements such as those made by the Kennemores in a 9-1-1 call to a dispatcher are testimonial for Confrontation Clause purposes has been addressed by apparently only one Texas court to date. See Ruth v. State, 167 S.W.3d 560, 568-70 (Tex.App.-Houston [14th Dist.] 2005, no pet. h.). The court began its analysis by reviewing its most recent precedent to determine whether a statement is testimonial:

(1) Testimonial statements are official and formal in nature.
(2) Interaction with the police initiated by a witness or the victim is less likely to result in testimonial statements than if initiated by the police.
(3) Spontaneous statements to the police are not testimonial.
(4) Responses to preliminary questions by police at the scene of a crime while police are assessing and securing the scene are not testimonial.

Id. at 568-69 (citing Spencer, 162 S.W.3d at 881-83). Using these principles, the Ruth court determined that statements to the police — whether spontaneous or in response to preliminary questions — when police are called to a crime scene shortly after a crime, are not testimonial because such interactions are not initiated by the police and are not formal or structured. Id. at 569 (citing Spencer, 162 S.W.3d at 882-83). The court then said:

Though no Texas court has yet addressed this situation, statements made during 911 calls are similar in nature to the situation we addressed in Spencer. Such statements are not given in response to structured police questioning or with an eye to [] future legal proceedings but are initiated by a victim or witness to obtain police assistance. See People v. Corella, 122 Cal.App.4th 461, 18 Cal.Rptr.3d 770, 776 (2004); People v. Moscat, 3 Misc.3d 739, 777 N.Y.S.2d 875, 879-80 (Crim.Ct.2004); State v. Davis, 154 Wash.2d 291, 111 P.3d 844, 849 (2005). They usually do not bear any of the official, formal qualities of the police interactions the Confrontation Clause was intended to protect against. See Corella, 18 Cal.Rptr.3d at 776; Moscat, 777 N.Y.S.2d at 879-80; Davis, 111 P.3d at 850-51. Some courts have held that statements made during 911 calls should be analyzed on a case-by-case basis because some statements could be testimonial under certain circumstances. See People v. West, 355 Ill.App.3d 28, 291 Ill.Dec. 72, 823 N.E.2d 82, 91 (2005) (holding that 911 calls should be analyzed on a case-by-case basis to determine whether statements at issue were volunteered to obtain police action or the result of interrogation to gather evidence for use in a criminal prosecution); People v. Mackey, 5 Misc.3d 709, 785 N.Y.S.2d 870, 872 (Crim.Ct.2004) (noting that “[v]arious courts have begun to adopt a fact-specific analysis of the particular call and the caller’s motive for making the call” in conducting Crawford analyses); Davis, 111 P.3d at 850 (“In most cases, one who calls 911 for emergency help is not ‘bearing witness,’ whereas calls made to the police simply to report a crime may conceivably be considered testimonial. It is necessary to look at the circumstances of the 911 call in each case to determine whether the declarant knowingly provided the functional equivalent of testimony to a government agent.”). But see People v. Cortes, 4 Misc.3d 575, 781 N.Y.S.2d 401, 415 (Sup.Ct.2004) (categorically concluding that “[c]alls to 911 to report a crime are testimonial under [Crawford ]”).

Id.

We agree with Ruth that it is necessary to look at the circumstances of each case to determine whether statements made in a 9-1-1 call are testimonial under Crawford. See id. In this case, Schultz’s 9-1-1 call was to report a robbery in progress and to summon emergency police help. The background statements of the Kennemores and the statements made by Mrs. Kennemore after Schultz handed her the phone were only in furtherance of Schultz’s non-testimonial call for help. Because the Kenne-mores’ statements on the 9-1-1 call were not testimonial, Kearney’s Sixth Amendment rights were not implicated, and the trial court did not err in overruling his objection on that basis. We overrule Kearney’s first issue.

Voluntariness of Confession

Complaining of the trial court’s denial of his motion to suppress his hospital bed confession, Kearney’s second and third issues challenge the voluntariness of the confession under the U.S. and Texas constitutions and article 38.22, section 6 of the Texas Code of Criminal Procedure. His fourth issue asserts that the State failed to produce competent medical evidence during the Jackson v. Denno hearing on his motion to suppress to show that Kearney was mentally or physically capable of giving a voluntary statement. We will consider the three issues together.

An accused must give his confession voluntarily before it can be used against him. Penry v. State, 903 S.W.2d 715, 744 (Tex.Crim.App.1995); Sendejo v. State, 953 S.W.2d 443, 447-48 (Tex.App.Waco 1997, pet. ref'd.). Once the accused contests the admission of his statement on the ground of “involuntariness,” the due process guarantee and article 38.22, section 6 require the trial court to hold a hearing on the admissibility of the statement outside the presence of the jury. Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Crim.App.1995) (citing Jackson v. Denno, 378 U.S. 368, 380, 84 S.Ct. 1774, 1782-83, 12 L.Ed.2d 908 (1964)); see Tex. Code Crim. Proc. Ann. art. 38.22, § 6 (Vernon 2005).

When reviewing a suppression hearing ruling, we view the evidence in the light most favorable to the trial court’s ruling. See State v. Terrazas, 4 S.W.3d 720, 725 (Tex.Crim.App.1999); Villarreal v. State, 935 S.W.2d 134, 138 (Tex.Crim.App.1996). Voluntariness is determined by looking at the totality of the circumstances. See Griffin v. State, 765 S.W.2d 422, 427 (Tex.Crim.App.1989). The trial court is the sole judge of the weight and credibility of the evidence, and the court’s findings may not be disturbed on appeal absent a clear abuse of discretion. Alvarado, 912 S.W.2d at 211. As such, abuse of discretion is the appropriate standard of review for challenges to the trial court’s admission of evidence. See Angleton v. State, 971 S.W.2d 65, 67 (Tex.Crim.App.1998).

At the hearing, the State must prove voluntariness by a preponderance of the evidence. Alvarado, 912 S.W.2d at 211.

However, the prosecution is not put to this burden unless a defendant presents evidence that raises a voluntariness question. See Article 38.22, Section 6, (not applicable unless “a question is raised as to the voluntariness of a statement”); Romero v. State, 800 S.W.2d 539, 544 fn. 7 (Tex.Cr.App.1990) (“volun-tariness must be put in issue by facts before it is an issue”); Dunn v. State, 721 S.W.2d 325, 336 (Tex.Cr.App.1986); compare Article 38.22, Section 7, V.A.C.C.P., (trial court not required to submit voluntariness question to jury unless “issue is raised by the evidence”).

Terrazas, 4 S.W.3d at 725. The typical case involves a defendant presenting evidence that the police used unconstitutional methods to obtain a confession and the prosecution controverting that evidence with evidence that the police used constitutional methods. Id. at 724-25.

Substantive constitutional law prohibits the government from using an involuntary confession against an accused with the test for voluntariness being whether the confession is the product “of an essentially free and unconstrained choice by its ■ maker.” Schneckloth v. Bustamonte, 412 U.S. 218, 225, 93 S.Ct. 2041, 36 L.Ed.2d 854 (1973); Alvarado v. State, 912 S.W.2d 199, 211 (Tex.Cr.App.1995) (statement is involuntary “only if there was official, coercive conduct of such a nature that any statement obtained thereby was unlikely to have been the product of an essentially free and unconstrained choice by its maker”)'. Whether the confession is true or false is irrelevant to a voluntariness determination because it is the methods used to extract an involuntary confession that offend constitutional principles. See Lego v. Twomey, 404 U.S. 477, 92 S.Ct. 619, 624 fn. 12, 625 fn. 13, 30 L.Ed.2d 618 (1972).

Id. at 723-24.

This was not a typical case. At the suppression hearing, Kearney did not testify. Detective Albert Neveu was called by the defense to testify about the hospital bed confession that he had obtained from Kearney late in the evening after the robbery and shootout. Before talking to Kearney, Neveu was aware that he had been shot twice and had been in surgery. Neveu did not know how long Kearney had been out of surgery. Neveu did not ask any physician whether Kearney had been under anesthesia, nor whether Kearney was on any medication. In response to Kearney’s counsel’s questions about Kear-ney’s physical condition at that time, Ne-veu said that Kearney “looked like he was in pretty good shape.” Neveu had anticipated that Kearney would be “laying there kind of limp but he Was pretty livid and active laying down on his back.”

After Neveu gave Miranda warnings to Kearney, the following pertinent exchange occurred in the taped confession:

NEVEU: Okay, was you trying to hit the officer when you shot at him, or scare him?
KEARNEY: I was trying to hit him.
NEVEU: Okay, so you could get away, correct?
KEARNEY: Yes.
NEVEU: Okay. How did you manage to get out of the car and get on foot? Did you decide to jump out and run or what was the deal there?
KEARNEY: I choose not to answer the question.
NEVEU: Okay, okay. Did the officer tell you to stop?
KEARNEY: I seen him out there; I seen him out there ... (inaudible)
NEVEU: Did you shoot first or did he shoot first? Or can you remember?
KEARNEY: I think I did. I don’t, I don’t know about that.
NEVEU: Okay.
KEARNEY: But I think I did.
NEVEU: How many times did you shoot?
KEARNEY: I don’t know.

The State offered Kearney’s medical records into evidence. They reflect that Kearney had three wounds: entry and exit wounds from one bullet and a bullet fragment in his chest “just beneath the skin.” The wounds involved only the skin and soft tissues. Without being put under anesthesia, the bullet fragment was removed, and Kearney was given Vicodin for pain. After overnight observation, Kearney was discharged to the county jail the following morning.

On cross-examination by the State, Ne-veu stated that he did not have any trouble communicating with or understanding Kearney; Kearney’s conversation made sense. After reading Kearney the Miranda warnings, Kearney said that he understood them. He spoke with Neveu “freely and voluntarily.” Kearney’s choice not to answer a question was an indication to Neveu that Kearney understood that he had the right to refuse to talk with Neveu. Kearney never said that he did not want to talk to Neveu, who said he did not coerce or persuade Kearney to talk or promise him anything.

The trial court denied the motion and later issued findings. The trial court found that although Neveu did not inquire whether Kearney was on medication, Kearney appeared cognizant and alert at the time of the statement and exhibited an ability to comprehend the questions and answered them appropriately. Kearney showed a clear ability to distinguish between questions that he was willing to answer and those he was not willing to answer.

At trial, and without objection, the State introduced the circumstances surrounding Kearney’s confession. Officer Melnyk testified that he rode with Kearney in the ambulance to the hospital and was in the ER with Kearney while physicians treated him. Kearney was not put under anesthesia; he was awake when they removed the bullet. Neveu’s trial testimony also included the voluntariness of Kearney’s confession; he testified that Kearney’s statement was freely and voluntarily given and that Kearney understood his questions. On cross-examination, Neveu admitted that he did not know when Kearney had gotten out of surgery and that he had assumed that Kearney was on pain medication.

In closing argument, Kearney’s counsel argued voluntariness, focusing on Neveu’s taking the statement when Kearney “just got out of surgery” and “had ... some painkillers in him.” “He’s [Neveu] taken that [statement] from a person, who just had two slugs removed from .him some 20 minutes before just out of E.R.”

In a review of a trial court’s suppression hearing ruling, we generally consider only the evidence adduced at the suppression hearing. Rachal v. State, 917 S.W.2d 799, 809 (Tex.Crim.App.1996).

However, this general rule is inapplicable where, as in this case, the suppression issue has been consensually re-litigated by the parties during trial on the merits. Id. [Hardesty v. State, 667 S.W.2d 130, 135 n. 6 (Tex.Crim.App.1984).] Where the State raises the issue at trial either without objection or with subsequent participation in the inquiry by the defense, the defendant has made an election to re-open the evidence, and consideration of the relevant trial testimony is appropriate in our review. Id. at 135; See also Webb v. State, 760 S.W.2d 263, 272 n. 13 (Tex.Crim.App.1988), cert. denied, 491 U.S. 910, 109 S.Ct. 3202, 105 L.Ed.2d 709 (1989). Moreover, it would be unreasonable to ignore trial evidence in our review of the court’s suppression decision only to be confronted by the evidence in our consideration of whether the error was harmless. Tex.R.App. P. 81(b)(2).

Id.

Thus, because Kearney did not object when the. State reintroduced the voluntariness issue and participated in the relitigation of the issue in its cross-examinations of Neveu and Melnyk and in closing argument, we may properly consider Neveu’s and Melnyk’s trial testimony in our review of the, trial court’s suppression determination. See id.

Kearney’s argument for his second and third issues is that his confession was involuntary per se because of his 'presumably incapacitated condition after being shot and treated, which he claims raised evidence of involuntariness. He also asserts that the police interrogation was “improper” as a matter of law. Kearney cites no authority that supports his position, and his argument rests entirely on the fact that Neveu did not confer with medical personnel about Kearney’s condition before he obtained the confession. Instead, he complains that Neveu’s subjective, lay opinion testimony was insufficient to controvert Kearney’s presumably incapacitated condition that allegedly raised volun-tariness.

Kearney additionally asserts that his condition raised reliability questions on his ability to understand his Miranda warnings and to waive his constitutional rights.

An inquiry into the waiver of Miranda rights “has two distinct dimensions.” First, the waiver must be “voluntary in the sense that it was the product of a free and deliberate choice rather than intimidation, coercion, or deception.” Second, the waiver must be made “with a full awareness both of the nature of the right being abandoned and the consequences of the decision to abandon it.” ... Intoxication, for example, is but one relevant factor to consider in determining whether an accused understood his rights.

Ripkowski v. State, 61 S.W.3d 378, 384 (Tex.Crim.App.2001) (footnotes omitted).

Citing Ford v. State for the proposition that Neveu’s subjective opinion that Kearney’s statement was voluntary could not establish that Kearney was capable of understanding the Miranda warnings and giving a voluntary confession, Kearney argues that the State was required to present objective medical evidence about Kear-ney’s condition. Ford v. State, 158 S.W.3d 488 (Tex.Crim.App.2005). There the court held that in a reasonable-suspicion analysis, mere opinions of an officer are ineffective substitutes for specific, articulable facts, and the record must include objective facts that support the officer’s suspicion. Id. at 493-94. Kearney cites no other authority that the State was required to present expert medical testimony about his condition at the time of his confession, and we agree with the State that Jackson v. Denno does not require it. And while we doubt the applicability of the Terry-stop analysis in Ford to police-officer testimony in a Jackson v. Denno hearing, Neveu’s testimony was supported by objective evidence consisting of Kearney’s medical records and the taped confession.

Kearney’s medical records reflect superficial gunshot wounds and an overnight hospital stay. On the taped confession (which we have reviewed), Kearney was able to understand the Miranda warnings and Neveu’s questions; he even chooses not to answer a question, which is evidence that he not only understood the question, but understood that he had a right not to answer it. Viewing the evidence in the light most favorable to the trial court’s ruling, we agree with the State that Kearney did not present evidence that raised a voluntariness question and that voluntariness was not raised as a matter of law. Furthermore, based on the evidence discussed above viewed in the light most favorable to the ruling, the trial court did not abuse its discretion in finding volun-tariness by a preponderance of the evidence. We overrule issues two, three, and four.

Conclusion

Having overruled Kearney’s four issues, we affirm the trial court’s judgment.

      . The voluntariness issue was not submitted to the jury.

      . He does cite the factual scenario in Jackson v. Denno as support for the proposition that voluntariness was raised as a matter of law, but a closer analysis of that case belies Kear-ney’s argument. The evidence in Jackson v. Denno included a crucial dispute on the issue of police coercion. In that case the defendant Jackson, while being treated for a serious gunshot wound, admitted to a robbery and to shooting a police officer. Jackson claimed that his state court murder conviction was invalid because it was founded on a confession that was not properly determined to be voluntary. The Supreme Court concluded that Jackson was entitled to a state court hearing to determine the voluntariness of his confession, but its conclusion was not based merely on Jackson’s medical condition:
      This is not a case where the facts concerning the circumstances surrounding the confession are undisputed and the task is only to judge the voluntariness of the confession based upon the clearly established facts and in accordance with proper constitutional standards. Here there are substantial facts in dispute: Jackson said that he was in pain from his wounds, gasping for breath and unable to talk long. A state witness described Jackson as in strong condition despite his wounds. According to Jackson, the police told him he could have no water and would not be left alone until he gave the answers the authorities desired. These verbal threats were denied by the State. Whereas Jackson claimed his will was affected by the drugs administered to him, the State’s evidence was that-the drugs neither had nor could have had any effect upon him at all. Whether Jackson is entitled to relief depends upon how these facts are resolved, for if the State is to be believed we cannot say that Jackson’s confession was involuntary, whereas if Jackson’s version of the facts is accepted the confession was involuntary and inadmissible.

        Jackson v. Denno, 378 U.S. 368, 391-92, 84 S.Ct. 1774, 1789, 12 L.Ed.2d 908 (1964).


author: TOM GRAY, Chief Justice.

text:
    Howard KIM, Appellant, v. The STATE of Texas, Appellee.
    No. 10-05-00352-CR.
    Court of Appeals of Texas, Waco.
    Nov. 2, 2005.
    Howard Kim, Huntsville, pro se.
    Charles A. Rosenthal, Jr., Harris County Dist. Atty., Houston, for appellee.
    Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
   OPINION

TOM GRAY, Chief Justice.

We issued an opinion in Howard Kim’s underlying conviction on October 6, 2004. The trial court’s judgment was affirmed.

Kim has now filed additional papers challenging his conviction asserting the trial court lacked jurisdiction and arguing, based on Ex 'parte Seidel , that he can appeal a trial court’s lack of jurisdiction at any time. Kim is wrong. For at least three reasons, we do not have jurisdiction of his appeal, and we dismiss it.

Transfer Jurisdiction

Kim’s original criminal case was transferred to us, as the Supreme Court may do. See Tex. Gov’t Code Ann. § 73.001 (Vernon 2005). When a case is transferred to us, we have jurisdiction of the case regardless of where the case was originally tried. Id. § 73.002(a). However, this appeal was not transferred to us; Kim sent it to us. And Kim is complaining about the actions of a trial court in Harris County. Under normal circumstances, a court of appeals has appellate jurisdiction only within their respective districts. See Tex. Const. art. 5, § 6. Harris County is not within this Court’s judicial district. See Tex. Gov’t Code Ann. § 22.201(k) (Vernon Supp.2005). Therefore, we have no jurisdiction over Kim’s attempted appeal.

Final Judgment in his Original Appeal

If Kim was intending to re-open his original appeal, he cannot.

An opinion was issued in Kim’s original appeal in October of 2004. We denied his motion for rehearing in November. The Court of Criminal Appeals refused discretionary review of Kim’s case in March of 2005. Our mandate issued in June.

Kim’s appeal is final and we cannot act on that case. Our plenary power to act in the original appeal expired in December of 2004, 30 days after we denied his motion for rehearing. Tex.R.App. P. 19.1. Thus, we have no jurisdiction.

Post Conviction Collateral Attack

If Kim was intending to file a post-conviction collateral attack, we, again, do not have jurisdiction of his attack. As the Sixth Court recently stated:

Our original and appellate jurisdiction is limited by the Texas Constitution and by statutes promulgated by the Texas Legislature and approved by the Governor. The Texas Constitution grants this Court original jurisdiction only in cases where specifically prescribed by law. TEX. CONST. art. V, § 6. As it relates to the case now before us, we are not among the list of courts authorized to grant relief pursuant to post-conviction writs of habeas corpus. TEX. CODE CRIM. PROC. ANN. art. 11.05 (Vernon 2005). We also are not authorized under TEX. GOV’T CODE ANN. § 22.221 (Vernon Supp.2004) to consider an original, post-conviction application for writ of habeas corpus. Our law requires post-conviction applications for writs of habeas corpus, for felony cases in which the death penalty was not assessed, to be filed in the court of original conviction, made returnable to the Texas Court of Criminal Appeals. TEX. CODE CRIM. PROC. ANN. art. 11.07(3)(a), (b) (Vernon 2005).

Ex parte Martinez, 175 S.W.3d 510, 512-13 (Tex.App.-Texarkana 2005, orig. proceeding)

Thus, we do not have jurisdiction of a post-conviction collateral attack.

What Seidel Means

Kim relies on Ex parte Seidel in support of his argument that because the trial court lacked jurisdiction, his initial sentence and revocation were void and he could raise this complaint at any time. In Seidel, the district court dismissed a case with prejudice, and the State did not appeal. When the State re-filed the case in the county court, the court granted the defendant’s application for writ of habeas corpus, stating that because the previous case was dismissed with prejudice, the State was not allowed to file a lesser charge stemming from the same transaction. The State appealed that ruling, and the court of appeals held that although the defendant was entitled to a discharge from bail, the State was not barred from filing charges later. The court of appeals found, however, that the State waived error when it failed to appeal the district court’s dismissal with prejudice.

On discretionary review, the Court of Criminal Appeals delineated the difference between the lack of jurisdiction over a case and the lack of authority to act in a particular manner. Lack of jurisdiction over a case always renders a judgment void. Ex parte Seidel, 39 S.W.3d 221, 224 (Tex.Crim.App.2001). A lack of authority to act may render a judgment void or voidable. Id, A judgment is void if, although the court has jurisdiction over a case, the court’s action is not authorized by law. Id.

In Ex parte Seidel, the Court of Criminal Appeals found that the district court had jurisdiction to dismiss the case but did not have the authority to dismiss it “with prejudice.” Id. at 225. The dismissal with prejudice was an act not authorized by law. Id. Thus, the judgment was void, and the State could attack it by direct appeal or collateral attack. Id.

Kim contends that the trial court lacked jurisdiction and the judgment was void. As discussed earlier in this opinion, Kim’s original direct appeal is final, and we cannot entertain a collateral attack. Ex parte Seidel does not help Kim in this case.

Conclusion

This Court has no jurisdiction of Kim’s current appeal. Therefore, we dismiss it.

      . 39 S.W.3d 221 (Tex.Crim.App.2001).

      . 39 S.W.3d 221 (Tex.Crim.App.2001).


author: JOHN G. HILL, Senior Justice BILL VANCE, Justice, JOHN G. HILL, Senior Justice. Justice VANCE,

text:
    Rebecca Ann SHAW, Appellant, v. The STATE of Texas, Appellee.
    No. 10-03-00299-CR.
    Court of Appeals of Texas, Waco.
    Nov. 9, 2005.
    Opinion Overruling Rehearing Dec. 14, 2005.
    Rehearing Overruled Jan. 3, 2006.

      L. Patrick Davis, Ft. Worth, for appellant.
    Dale S. Hanna, Johnson County Crim. Dist. Atty., Cleburne, for appellee.
    Before Justice VANCE, Justice REYNA, and Senior Justice HILL (Sitting by Assignment).
   OPINION

JOHN G. HILL, Senior Justice

(Assigned).

Rebecca Ann Shaw appeals her conviction by a jury of the offense of recklessly causing serious bodily injury to a child. The jury assessed her punishment at twenty years in the Texas Department of Criminal Justice, Institutional Division, and a fine of $10,000. She asserts in a single point that the trial court erred in refusing to submit her timely requested defense to prosecution of injury to a child, that the act or omission consisted of emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts. We affirm.

As a general rule, an accused has the right to an instruction on any defensive issue raised by the evidence, whether such evidence is strong or weak, unimpeaehed or contradicted, and regardless of what the trial court may or may not think about the credibility of the evidence. Miller v. State, 815 S.W.2d 582, 585 (Tex.Crim.App.1991). An element of the defense is “raised” if, viewing the evidence in the light most favorable to the defendant, there is evidence that a rational juror could accept as sufficient to prove that element. See Mathews v. United States, 485 U.S. 58, 63, 108 S.Ct. 883, 887, 99 L.Ed.2d 54, 61 (1988); United States v. Maseratti, 1 F.3d 330, 336 (5th Cir.1993); Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001); Johnson v. State, 157 S.W.3d 48, 50 (Tex.App.-Waco 2004, no pet.); Wilson v. State, 111 S.W.2d 823, 825 (Tex.App.-Austin 1989), aff'd, 853 S.W.2d 547 (Tex.Crim.App.1993). Whether the defense is raised by the evidence is always a question of law. Id.

The dissent questions our reliance on a rational-juror test as a basis for determining whether defensive evidence is sufficient to require an instruction, arguing that the use of such a test wrongly allows the court to weigh the relative credibility of the evidence. We submit that the test assumes the credibility of the evidence supporting the defense, then determines whether it is evidence that a rational juror could accept as sufficient to prove the elements of the defense.

The dissent also suggests that a rational-juror test is in conflict with the concept that an accused has the right to an instruction on any defense issue raised by the evidence, regardless of its strength or credibility. Rather, the rational-juror test is the standard by which we determine whether that evidence has raised a defensive issue. Our opinion is not in conflict with opinions of the Texas Court of Criminal Appeals or of this court that hold that a defendant is entitled to an instruction when a defensive issue has been raised by the evidence, regardless of its strength or credibility, but do not explicitly set forth the standard by which the court determines when the defensive issue has been raised. The real alternative standard to that which we have set forth is that a defendant is entitled to an instruction on a defensive issue even if the evidence would not rationally support a finding of the elements of the defense. We respectfully decline to adopt that standard.

It is a defense to prosecution for injury to a child that the act or omission consisted of emergency medical care administered in good faith and with reasonable care by a person not licensed in the healing arts. Tex. Pen.Code Ann. § 22.04(k)(l)(B) (Vernon 2003). Shaw was convicted of recklessly causing serious bodily injury to a child by shaking the child and causing his head to strike an unknown object. We will first see if there is evidence from which a rational juror could conclude that Shaw’s shaking the child and causing his head to strike an unknown object consisted of emergency medical care administered in good faith and with reasonable care.

Shaw testified that on the day in question she had been caring for her grandchild in her home for almost a month. She said that she called 911 because the child was in his crib having labored breathing. She stated that when she saw the child having breathing problems, she dropped the clothing she had in her hand and ran to his crib, picked him up, and called to him, but he did not respond. She acknowledged that she had performed CPR before this occasion.

She testified that she went over and “went like this” and picked up the child “like this,” called the child’s name, and “his little head went over.” She stated that she ran through the house to get the baby’s heart monitor, while holding the baby “like this.” She indicated that rather than hooking the child up to the heart monitor, she got a wet rag and patted the child with it “like this.” In getting the rag wet, she could not get the faucet on so she switched arms “like this.”

Shaw testified that she took the child to the bedroom, placed him on the bed with the heart monitor, and grabbed the phone. She related that after trying to call her landlord, she called 911. She stated that she was instructed by the 911 dispatcher. She indicated that she was told to do rescue breathing and tip the child’s head back. She said she tipped the child’s head back and blew in his mouth.

Shaw testified that she felt that she was not getting a seal on the child’s nose with her cheek, and she could not open her mouth big enough to get around his mouth and his nose. She stated that when the paramedics were on their way and she realized the door was locked, she grabbed the child underneath “like this,” while running through the house to unlock it. According to Shaw, after unlocking the door, she returned to the phone where she started to do CPR when the paramedics told her to do it. Shaw testified that at first two police officers showed up and performed CPR. She indicated that the paramedics started working on the child after they arrived. The 911 tape reflected the panic and stress of Shaw’s voice as she responded to the crisis.

Dr. Angel Hernandez, a pediatric neurologist, testified that on the evening the child was brought to the hospital, he was called in to help evaluate the child. After conducting several tests, Dr. Hernandez concluded that bleeding in the child’s brain was caused by shaking the baby or by hitting it with something in the head. He insisted that such an injury could have occurred within minutes or no more than four to six hours previously. In a consultation report dated the day of the child’s being taken to the hospital, Dr. Hernandez concluded that certain bleeding in the brain was probably the result of aggressive, cardio-pulmonary resuscitation, but that he could not rule out the possibility of non-accidental trauma.

In summary, Shaw testified how she ran through the house with the baby and how she performed CPR on the baby, while one of the attending physicians, at least initially, thought that the injury was the result of aggressive cardio-pulmonary resuscitation. That same physician testified that in his opinion shaking the baby or hitting it in the head caused the injury. The emergency medical care for the baby was CPR. There was no testimony regarding how either the responding police officers or the responding paramedics conducted CPR. There is no evidence that shaking a baby or causing its head to hit an object, even including a bed, is reasonable in conducting CPR on an infant. Therefore, assuming there is evidence that Shaw shook the baby and hit its head against an object, which might include the bed, there is no evidence from which a rational juror could conclude that such action was a reasonable way to conduct infant CPR. Inasmuch as the average jury would be unfamiliar with the appropriate conduct of infant CPR, it would not be in a position to judge whether Shaw’s actions were reasonable under the circumstances. If one were to suggest that the jury could make such a determination through common knowledge, common knowledge would be that shaking a baby and hitting its head against an object, even a bed, would not be a reasonable way to conduct CPR. We hold that a rational juror could not conclude from this evidence that shaking the baby or causing its head to hit an unknown object consisted of emergency medical care administered in good faith and with reasonable care.

We next consider whether there is evidence from which a reasonable juror might conclude that Shaw was a person not licensed in the healing arts. “Healing arts” is not defined in section 22.04 of the Texas Penal Code. See Tex. Pen.Code ANN. § 22.04 (Vernon 2003). We must therefore construe the meaning of the term as it is contained in section 22.04(k)(l)(B) of the Code. The provisions of the Penal Code are to be construed according to the fair import of their terms, to promote justice and effect the objectives of the code. Tex. Pen.Code ÁNN. § 1.05(a) (Vernon 2003). Unless a different construction is required by the context, sections 311.011, 311.012, 311.014, 311.015 and 311.021 through 311.032 of the Government Code (Code Construction Act), apply to the construction of the Penal Code. Tex. Pen.Code Ann. § 1.05(b) (Vernon 2003). We are to read words and phrases in context and construe them according to the rules of grammar and common usage. Tex. Gov’t Code Ann. § 311.011(a) (Vernon 2005). We are to construe words and phrases that have acquired a technical or particular meaning, whether by legislative definition or otherwise, according to that meaning. Tex. GoV t Code Ann. § 311.011(b) (Vernon 2005).

Whether or not this statute is considered ambiguous on its face, we may consider, among other matters, the: (1) object sought to be attained; (2) circumstances under which the statute was enacted; (3) legislative history; (4) common law or former statutory provisions, including laws on the same or similar subjects; (5) consequences of a particular construction; (6) administrative construction of the statute; and (7) title (caption), preamble, and emergency provision. Tex. Gov5 t Code Ann. § 311.023 (Vernon 2005).

Shaw testified that at the time she became totally responsible for the care of the child, she was working as .a pediatrician’s medical assistant, taking care of all the pediatric care. She outlined her duties and responsibilities under that pediatrician, as “everything required to take care of all the children in her office, immunizations, checking them in, weighing them.” When asked what the licensing was for becoming a medical assistant to a pediatrician, she said that one has to go through school and become licensed. She indicated that she went through the school and graduated.

A person may not practice as a physician assistant unless the person is licensed. Tex. Occ.Code Ann. § 204.151 (Vernon 2004). We are not aware of any medical assistants, other than physician assistants and nurses, who are required to be licensed. Since Shaw does not appear to be a nurse, the only reasonable conclusion that may be drawn from her testimony is that she is licensed as a physician assistant. The question we must determine is whether a physician assistant is a person licensed in the healing arts within the meaning of section 22.04 of the Texas Penal Code.

“Healing” has been defined as “tending to heal or cure.” Webster’s Third New International Dictionary of the English Language Unabridged 1043 (Merriam-Webster, Inc.1993). “Art” has been defined as “the power of performing certain actions esp. as acquired by experience, study, or observation.” Id. at 22. Internet research through the Google search engine reveals that the term “healing arts” in common usage includes a broad range from physicians to massage therapists and crystal healers. The legislature, in the Healing Art Identification Act, broadly defined the “healing art” as “any system, treatment, operation, diagnosis, prescription, or practice to ascertain, cure, relieve, adjust, or correct a human disease, injury, or unhealthy or abnormal physical or mental condition.” Tex. OCC.Code Ann. § 104.002 (Vernon 2004).

Having broadly defined “healing art,” the legislature in the next section of the Healing Art Identification Act includes a list of legally required identifications that must be used by certain practitioners of the healing arts. See id. § 104.003 (Vernon 2004). Those include physicians, dentists, chiropractors, optometrists, and podiatrists. There is no stated identification in this section for physician assistants. Id. All of these medical professionals are licensed; however, in another statute the legislature has subsequently provided that even certified medical workers are involved in the healing arts. See Tex. Civ. PRAC. & Rem.Code Ann. § 74.152 (Vernon 2005).

Therefore, given the broad definition of the healing arts, and its broad usage in our society; given the fact that physicians are practitioners of the healing art and physician assistants perform many of the same practices as a physician, acting under the supervision of a physician; and given that the legislature has subsequently provided that even certified medical workers are involved in the healing arts, we hold that a physician assistant is, for the purpose of the defense to this prosecution, a person licensed in the healing arts. Consequently, Shaw, who is a licensed physician assistant, is licensed in the healing arts with respect to the purpose of the defense to this prosecution. We recognize the possibility that, despite her testimony, Shaw may be an unlicensed medical assistant who performs only routine tasks in the office to assist the physician. However, in view of Shaw’s testimony that she was licensed, and her broad testimony as to her duties, a rational juror would be required to resort to speculation in order to make such a determination.

With respect to this aspect of the issue, Shaw relies on the cases of Moore v. Trevino, 94 S.W.3d 723 (Tex.App.-San Antonio 2002, pet. denied), and Hernandez v. Lukefahr, 879 S.W.2d 137 (Tex.App.-Houston [14th Dist.] 1994, no writ). We find both cases to be distinguishable.

In Moore, the court held, in construing the former section 74.002 of the Good Samaritan Act, that emergency medical service personnel are not persons licensed in the healing arts within the meaning of that statute. Moore, 94 S.W.3d at 727. Section 74.002 provided that persons not licensed in the healing arts who in good faith administer emergency care as emergency medical service personnel were not liable in civil damages for an act performed in administering the care unless the act was willfully or wantonly negligent, without regard to whether the care was provided for or in expectation of remuneration. Civil Practice & Remedies Code, 69th Leg., R.S., ch. 959, § 1, sec. 74.002, 1985 Tex. Gen. Laws 3242, 3299 (amended 2003) (current version at Tex. Civ. Prac. & Rem.Code AnN. § 74.152).

We first note that the statute by its terms leads one to the conclusion that the legislature did not intend that emergency medical service personnel be considered as persons licensed in the healing arts. Id. The court reached its conclusion on the basis that emergency medical service personnel are not engaged in the practice of medicine and are not health care providers. See Moore, 94 S.W.3d at 727. The second reason for the court’s decision is that emergency medical personnel are not listed in the listing of healing arts in the Healing Art Identification Act and were not engaged in the practice of medicine or an equivalent practice in other statutes. Id.

In the case at bar, Shaw, as a licensed physician assistant, is engaged in the practice of medicine under the supervision of a physician and, unlike an emergency medical technician, is a healthcare provider. See Tex. Occ.Code Ann. §§ 152.003(a)(l)(J), 204.204 (Vernon 2004). Although not listed in the Healing Art Identification Act, physician assistants are daily engaged in the practice of medicine or “an equivalent practice in other statutes.” As we have previously noted, “healing arts” has been applied by the legislature to even certified medical workers who would necessarily not be among those listed in the Act. Therefore, we find that Moore is distinguishable and is not in conflict with this decision.

In Hernandez, the court held that a physician, who did not fall into one of the exceptions listed in the former section 74.001 of the Good Samaritan Act, was excluded from liability under that statute for emergency care that he administered unless his actions were willfully or wantonly negligent. See Hernandez, 879 S.W.2d at 140-42. Since that statute applied to any person who in good faith administered emergency care at the scene of an emergency or in a hospital and who did not fall within one of the four exceptions found in the statute, this holding is of no assistance in our determination of whether a physician assistant is licensed in the healing arts. See id. As previously noted, we find Hernandez to be distinguishable from the case at bar because it does not involve a determination of who is licensed in the healing arts. We do not find Hernandez to be in any way inconsistent with our opinion. Because a rational juror could not have found that Shaw’s conduct in shaking the baby and hitting its head against an object was reasonable emergency medical care or that Shaw was not licensed in the healing arts, the defense in question was not raised. Consequently, the trial court did not err in refusing to give the instruction requested by Shaw. We overrule Shaw’s sole point on appeal.

The judgment is affirmed.

Justice VANCE dissenting.

BILL VANCE, Justice,

dissenting.

With its reliance on Wilson v. State and application of a “rational-juror” test to the evidence to determine if an accused has the right to a defensive instruction, the majority applies the wrong test under Texas law and thus reaches the wrong result. See Wilson v. State, 777 S.W.2d 828, 825 (Tex.App.-Austin 1989), aff'd, 858 S.W.2d 547 (Tex.Crim.App.1993). Wilson was affirmed on other grounds, and neither the Court of Criminal Appeals nor any other Texas court of appeals has approved or adopted a rational-juror test, which in practice wrongly allows the judge — or judges — to weigh the relative credibility of the evidence.

The other two Texas cases cited by the majority neither mention nor apply a rational-juror test. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001); Johnson v. State, 157 S.W.3d 48, 50 (Tex.App.-Waco 2004, no pet.). Instead, they state and apply the well-established “raised-by-the-evidence” test discussed below. The two federal cases cited by the majority are not controlling.

Generally, when evidence from any source raises a defensive issue and the defendant properly requests a jury charge on that issue, the trial court must submit the issue to the jury. Muniz v. State, 851 S.W.2d 238, 254 (Tex.Crim.App.1993) (citing Moore v. State, 574 S.W.2d 122, 124 (Tex.Crim.App.1978)). The evidence that raises the issue may be strong, weak, contradicted, unimpeached, or unbelievable. Muniz, 851 S.W.2d at 254 (citing Sanders v. State, 707 S.W.2d 78, 80 (Tex.Crim.App.1986)); see also Ferrel, 55 S.W.3d at 591 (“A defendant is entitled to an instruction on self-defense if the issue is raised by the evidence, whether that evidence is strong or weak, unimpeached or contradicted, and regardless of what the trial court may think about the credibility of the defense.”); Johnson, 157 S.W.3d at 50 (quoting Ferrel). As we said in East v. State:

A trial court must charge the jury on any defensive issue raised by the evidence, “regardless of its substantive character.” Brown v. State, 955 S.W.2d 276, 279 (Tex.Crim.App.1997).
A defendant is entitled to an affirmative defensive instruction on every issue raised by the evidence regardless of whether it is strong, feeble, unim-peached, or contradicted, and even if the trial court is of the opinion that the testimony is not entitled to belief. The defendant’s testimony alone may be sufficient to raise a defensive .theory requiring a charge.
Id. (quoting Williams v. State, 630 S.W.2d 640, 643 (Tex.Crim.App.1982)). This rule is designed to insure that the jury, not the judge, will decide the relative credibility of the evidence, [citation omitted] When a judge refuses to give an instruction on a defensive issue because the evidence supporting it is weak or unbelievable, he effectively substitutes his judgment on the weight of the evidence for that of the jury, [citation omitted] The weight of the evidence in support of an instruction is immaterial.
Id. (quoting Woodfox v. State, 742 S.W.2d 408, 409-10 (Tex.Crim.App.1987)).

East v. State, 76 S.W.3d 736, 737 (Tex.App.-Waco 2002, no pet.).

By applying the wrong test to the evidence, the majority’s analysis and result are flawed. The evidence raised both elements of the defense on which Shaw requested an instruction.

Shaw testified how she ran through the house with the baby in a panic and how she performed CPR (emergency medical care) on the baby after calling 9-1-1. Dr. Hernandez thought — at least initially— that the injury was the result of aggressive cardio-pulmonary resuscitation. There thus was evidence that Shaw administered emergency medical care to the child in good faith and with reasonable care and that this care caused the child’s injury. While the causation testimony was contradicted, that factor does not support the denial of Shaw’s requested instruction; the first element of the defense was still raised by the evidence.

I also disagree with the majority’s assertion that “the only reasonable conclusion that may be drawn from [Shaw’s] testimony is that she is licensed as a physician assistant.” She testified ■ that she is a “medical assistant” and that she is “licensed.” I agree with the majority that “medical assistants” are not licensed by the State; thus, her testimony is susceptible of two interpretations: (1) she is a medical assistant who is mistaken about being “licensed” or (2) she is mistaken about being a “medical assistant” when she is in fact a physician assistant who is licensed. I believe that the former is the more rational interpretation of her testimony. It seems a lot more likely that a medical assistant might believe that going to school and graduating constituted a “license” than that a physician assistant, who is licensed, would describe herself as a “medical assistant.” Regardless, this seemingly conflicting evidence raised this element of the defense.

Because there was some evidence that Shaw (1) administered emergency medical care to the child in good faith and with reasonable care and that this care caused the child’s injury and (2) was not a person licensed in the healing arts, she was entitled to the requested defensive instruction. Because the majority applies an incorrect test and determines otherwise, I respectfully dissent.

OPINION ON REHEARING.

JOHN G. HILL, Senior Justice.

In her motion for rehearing, Shaw joins the dissent in contending that we applied the wrong test in determining whether the defensive issue she argued at trial was raised by the evidence. She argues that we should have applied what she refers to as the “raised-by-the-evidence test.” As we noted in the original opinion, the “rational-juror test” is the test used to determine whether, in fact, the defensive issue has been raised by the evidence. It is therefore a part of the “raised-by-the-evidence test,” not a separate test. We again reject the argument that a defensive issue has been raised by the evidence even though, presuming the defensive evidence to be true, no rational juror could'find for the defense based- upon the evidence presented.

Shaw urges that we erred in holding that no evidence was presented from which a rational juror could conclude that shaking the complainant and causing its head to hit a surface, even a bed, was the result of emergency medical care administered in good faith and with reasonable care. She refers us to evidence that she conducted CPR on the child and that she followed some instructions from the 911 operator in doing so. It is undisputed that Shaw conducted CPR and that she followed some instructions from the 911 operator in doing so. However, there is no evidence that Shaw’s conduct of the CPR was reasonable, and there is no evidence that she was ever instructed by the 911 operator or anyone else to shake the baby and cause its head to hit against a hard surface or the surface of the bed.

Shaw suggests that Deputy Thompson, who was the initial officer at the scene, observed her conducting CPR and that at no time did he observe that the CPR was not being conducted in good faith and with reasonable care. Shaw’s motion contains no record references to any place in the record where Deputy Thompson observes Shaw shaking the baby and hitting its head against a hard surface or the bed, and then expresses any opinion as to whether such conduct of CPR was reasonable. In fact, Deputy Thompson never expressed any opinion as to whether Shaw’s conduct of CPR was conducted with reasonable care.

Finally, Shaw refers us to testimony given by the medical examiner when asked what happens when an infant is shaken and then hits its head on the bed padding. Among other things, the medical examiner replied that the only difference between hitting the baby’s head against a hard surface and a surface such as the bed padding is that there is “less crushing injury of things outside the skull, so you may not see external bruising, you may not even see any bleeding under the scalp in the rare occasional case, but you will see still the accelerational injury with the brain and all its subdurals and that sort of thing.” Shaw interprets the testimony as saying that shaking the baby and hitting its head against an object, like a bed, could cause the injury sustained by the child in a rare case. We interpret the examiner’s testimony as saying that only in a rare case would one not see any bleeding under the scalp when the baby is shaken and its head hit against an object. We believe that a rational jury could not interpret the testimony in the way Shaw seeks to interpret it. However, even if the jury were to reasonably interpret the testimony in the way suggested by Shaw, it still does not constitute any evidence that Shaw’s shaking the baby and causing its head to hit an object consisted of emergency medical care administered in good faith and with reasonable care.

Shaw also suggests that we erred in holding that no rational jury could conclude from the evidence that she was not licensed in the healing arts. First, she refers us to section 204.003 of the Texas Occupation Code, which, among other things, provides that not every medical assistant or health care worker is required to hold a license as a physician assistant where one does not act as a physician assistant or represent to be one. She refers us to evidence that at trial neither she nor anyone else referred to her as a physician assistant, and that she signed consent forms at the hospital in her role as the complainant’s grandmother, not as a physician assistant. None of these matters Shaw presents constitutes evidence from which a rational jury could conclude that she is not licensed, in view of her testimony that she was licensed.

Having shown that she was a licensed medical assistant, Shaw was obligated to present evidence showing that she was not licensed in the healing arts. As noted in the original opinion, she gave a very broad description of her duties, from which a reasonable juror could conclude that she was licensed in the healing arts. It is true that a specific listing of what she did included tasks that arguably might not include the healing arts. However, one need not be licensed to perform those duties. Therefore, in view of her testimony that she was licensed, this did not constitute evidence from which a rational juror could conclude that Shaw was not licensed in the healing arts.

In answer to our suggestion that a jury would be required to resort to speculation in order to find from this evidence that Shaw was not licensed in the healing arts, Shaw refers us to a witness who testified that Shaw applied and received food stamps after she had lost her job. She also refers us to evidence obtained subsequent to trial from the internet website of the American Academy of Physician Assistants showing that the median annual income for a physician assistant in the United States was $67,734.00 in 2001. Shaw acknowledges that she had previously taken a voluntary leave of absence from the office of the physician for whom she had been employed. Shaw insists that a rational jury could conclude from this evidence that at the time of the occurrence in question she was an unemployed “medical assistant” on food stamps. Even if this is true, it does not constitute evidence from which a rational jury could conclude that Shaw was not licensed in the healing arts. First, there is no evidence that an unemployed “medical assistant” licensed in the healing arts, including a physician assistant, could not obtain food stamps if unemployed. Also, there is no evidence showing that one is no longer licensed in the healing arts when one becomes unemployed. We overrule Shaw’s motion for rehearing.

Justice VANCE,

dissenting on rehearing.

The majority opinion on rehearing continues to apply an incorrect “rational-juror” test to the evidence to determine if an accused has the right to a defensive instruction. Moreover, in its discussion of the evidence, the opinion on rehearing fails to apply the correct standard of review. As the original majority opinion notes, the evidence should be viewed in the light most favorable to the defendant. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001); Johnson v. State, 157 S.W.3d 48, 50-52 (Tex.App.-Waco 2004, no pet.) (reversing and remanding case because self-defense was raised by the evidence viewed in light most favorable to defendant ). But the opinion on rehearing reviews and discusses the evidence in both a neutral light and in a light most favorable to the prosecution, rather than in the light most favorable to Shaw.

In her motion for rehearing, Shaw aptly distinguishes between an unlicensed “medical assistant” and a licensed “physician assistant” by pointing to the Physician Assistant Licensing Act, which provides:

(a) A person is not required to hold a license issued under this chapter to practice as:
(1) a technician, assistant, or employee of a physician who performs delegated tasks but does not act as a physician assistant or represent that the person is a physician assistant; or....

Tex. Ooc-Code Ann. § 204.003(a)(1) (Vernon 2004) (emphasis added).

Shaw additionally asserts that if she were a licensed physician assistant, it would have been very unlikely for her to have called 9-1-1 for instructions on performing CPR. This argument, drawn from the evidence, additionally supports the conclusion that the jury could have found that she was a medical assistant who mistakenly thought she was licensed.

I would reverse the judgment and remand the cause for a new trial.

      . Civil Practice & Remedies Code, 69th Leg., R.S., ch. 959, § 1, sec. 74.002, 1985 Tex. Gen. Laws 3242, 3299 (amended 2003) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.152 (Vernon 2005)).

      . The current version of the statute was broadened slightly to include not only "persons not licensed” but also "persons not ... certified in the healing arts.” See Tex. Civ. Prac. & Rem.Code Ann. § 74.152 (emphasis added).

      . The former section 74.001 provided:
      (a) A person who in good faith administers emergency care at the scene of an emergency or in a hospital is not liable in civil damages for an act performed during the emergency unless the act is wilfully or wantonly negligent.
      (b) This section does not apply to care administered:
      (1)for or in expectation of remuneration;
      (2) by a person who was at the scene of the emergency because he or a person he represents as an agent was soliciting business or seeking to perform a service for remuneration;
      (3) by a person who regularly administers care in a hospital emergency room; or
      (4) by an admitting physician or a treating physician associated by the admitting physician of the patient bringing a health-care liability claim.
      Civil Practice & Remedies Code, 69th Leg., R.S., ch. 959, § 1, sec. 74.001, 1985 Tex. Gen. Laws 3242, 3299 (amended 1993) (current version at Tex. Civ. Prac. & Rem.Code Ann. § 74.151 (Vernon 2005)).

      . Why the defense in section 22.04(k)(l)(B) is limited to a "person not licensed in the healing arts” (unless that person is working under the direction of a licensed physician) is baffling. Did the legislature actually intend to provide this defense only to a "person not licensed in the healing arts” who administers emergency medical care in good faith and with reasonable care? See Tex Pen.Code Ann. § 22.04(k)(l)(B) (Vernon 2003) (current version at id. § 22.04(k)(2) (Vernon Supp.2005)). Are Good Samaritans (other than licensed physicians or persons acting under the direction of a physician) who are licensed in the healing arts not entitled to this defense for their good-faith conduct in an emergency?
      The purpose behind civil "Good Samaritan” laws is to increase the incentive for volunteers to provide emergency medical care by lowering the standard of care and exposure to liability. See McIntyre v. Ramirez, 109 S.W.3d 741, 745 (Tex.2003) ("we observe that the purpose of this statute is to increase the incentive for volunteers — and particularly physicians — to respond to medical emergencies”); Pleasant Glade Assembly of God v. Schubert, 174 S.W.3d 388, 396 (Tex.App.-Fort Worth 2005, pet. filed) ("the Good Samaritan statute ... provides that a person who in good faith administers emergency care is not liable in civil damages for an act performed during the emergency unless the act is wilfully and wantonly negligent. It is designed to offer protection to persons who voluntarily administer emergency care.”); Rosell v. Central West Motor Stages, Inc., 89 S.W.3d 643, 658 (Tex.App.-Dallas 2002, pet. denied) (“statute lowers the standard of care to encourage both certain medically-trained persons and laypersons to render aid in emergency situations”). The civil Good Samaritan statutes currently distinguish between licensed and unlicensed persons, apparently for professional medical liability purposes. Compare Tex. Civ. Peac. & Rem.Code Ann. § 74.151 (Vernon 2005) with id. § 74.152. The prior statute had two sections as well: former section 74.001 ostensibly covered health care professionals who administered emergency care, while former section 74.002 covered "persons not licensed in the healing arts,” including emergency medical service personnel. See Acts 1985, 69th Leg., R.S., ch. 959, § 1, 1985 Tex. Gen. Laws 3299 (formerly codified at Tex Civ. Prac. & Rem.Code Ann. §§ 74.001-.002). In 1985, emergency medical service personnel (such as paramedics or EMTs) were not licensed; but since 1999, they can now be licensed. See 25 Tex Admin. Code § 157.40 (2005); 24 Tex. Reg. 571, 1999 WL 49025 (1999) (section 157.40 effective Feb. 4, 1999). But compare Moore v. Trevino, 94 S.W.3d 723, 726-27 (Tex.App.-San Antonio 2002, pet. denied) (holding emergency medical service personnel are not persons licensed in healing arts), with Wheeler v. Yettie Kersting Memorial Hosp., 866 S.W.2d 32, 50-51 (Tex.App.-Houston [1st Dist.] 1993, no writ) (parties and court assumed EMTs were persons licensed in healing arts).
      When the defense at issue was added to section 22.04 in 1989, was the "person not licensed in the healing arts” language mistakenly imported from the civil Good Samaritan statutes without attention to its purpose in the civil liability context? See Acts 1989, 71st Leg., R.S., ch. 357, § 1, 1989 Tex. Gen. Laws 1442. One would reasonably think that, in passing former section 22.04(k)(l)(B), and despite the apparent language to the contrary, the legislature did not intend to discourage persons licensed in the healing arts (such as nurses and physician assistants) from providing emergency medical care when not under the direction of a licensed physician.