author: Opinion by Justice MOSELEY.

text:
    Aaron William HART, Appellant, v. The STATE of Texas, Appellee.
    No. 06-09-00049-CR.
    Court of Appeals of Texas, Texarkana.
    Submitted: April 14, 2010.
    Decided: April 30, 2010.

      David A. Pearson, IV, Fort Worth, for appellant.
    Jeffrey W. Shell, Rockwall, Atty. Pro Tem for State.
    Gary D. Young, Lamar County Dist. Atty., Paris, for appellee.
    Before MORRISS, C.J., CARTER and MOSELEY, JJ.
   OPINION

Opinion by Justice MOSELEY.

Aaron William Hart, a nineteen-year-old male, who, by reason of moderate mental retardation, has a full scale intelligence quotient of between forty-seven and fifty-two and the mental age of approximately an average six year old, was earning money in November 2008 by mowing the lawn of Sabrina Albertson, a neighbor.

Albertson noticed that Hart had ceased mowing and also noticed the absence of T.P., her six-year-old stepson, and went into the yard to locate T.P. Albertson followed the voices of Hart and T.P. to a shed, where she witnessed Hart “sitting directly beside” her stepson “on the ground with legs out in front of him,” “trying to hurry and pull his pants up.” Hart told Albertson that T.P. had gotten mad at him and pulled his pants down.

Albertson led T.P. into her house and closed the sliding glass door behind her. An uninvited Hart traipsed into the kitchen to ask if T.P.’s father was going to be mad at him and inquired if he was in trouble. Albertson instructed Hart to take his lawnmower and go home. Hart walked outside, paused, came back in, and asked if he could finish mowing the yard. Upon receiving a negative response, he gathered his mower and left.

T.P. told Albertson that Hart “pulled my pants down,” “touched his wee-wee,” tried to “put it in my butt,” and made T.P. touch his “wee-wee” to Hart’s “wee-wee.” Al-bertson called the police.

To Albertson’s surprise, Hart returned and resumed mowing the yard. After he was once again asked to leave, he complied — permanently this time — and walked away. Officer Davis Rowton found Hart walking down the street and placed him under arrest.

On the advice of court-appointed counsel, Hart entered a plea of guilty to the three counts of sexual assault of a child and two counts of indecency with a child contained in the indictment against him. Hart then tried the issue of punishment to a jury, which assessed him with a penalty of thirty years’ imprisonment on each of the three sexual assault counts and five years’ imprisonment on each of the two indecency with a child counts. Although no such request was made by the State, the trial court sentenced Hart to serve the five penalties consecutively (a cumulative sentence of 100 years’ imprisonment).

Hart has appealed. In Hart’s brief and in briefs presented by multiple amici curiae,, a number of issues have been raised.

Hart argues that counsel failed to conduct an adequate investigation into the issue of whether his guilty plea was voluntary. Specifically, Hart claims he received ineffective assistance of counsel when he entered an unintelligent plea of guilt based upon counsel’s erroneous advice that community supervision was a viable option in his case. We agree with Hart and reverse and remand.

Hart also alleges counsel was ineffective because he failed to: (1) investigate whether his mental retardation prevented the entry of a knowing and intelligent guilty plea; (2) consider the effect of Hart’s diminished capacity as a defense in developing his trial strategy; (3) seek a mental health expert to assist him in determining whether Hart was competent to stand trial; (4) present mitigating evidence of his mental retardation to the jury during punishment; and (5) challenge admissibility of Hart’s confession to the police. Hart additionally contends that the trial court erred in overruling his motion for new trial and abused its discretion in issuing allegedly untimely findings of fact and conclusions of law. Finally, Hart complains that a 100-year sentence for a mentally retarded defendant constitutes cruel and unusual punishment prohibited by the Eighth Amendment to the United States Constitution. The issue of ineffective assistance regarding erroneous advice that Hart was eligible for community supervision is dispositive of this case. Therefore, we do not decide Hart’s remaining points of error.

I. Standard of Review for Ineffective Assistance of Counsel

Hart was entitled to effective assistance of counsel during the plea bargaining process. Ex parte Battle, 817 S.W.2d 81, 83 (Tex.Crim.App.1991) (en banc). “No plea of guilty or plea of nolo contendere shall be accepted by the court unless it appears that the defendant is mentally competent and the plea is free and voluntary.” Tex.Code Cmm. PROC. Ann. art. 26.13(b) (Vernon Supp.2009). “A plea of guilty is not knowingly and voluntarily entered if it is made as a result of ineffective assistance of counsel.” Ex parte Burns, 601 S.W.2d 370, 372 (Tex.Crim.App.1980); Ex parte Karlson, 282 S.W.3d 118, 129 (Tex.App.-Fort Worth 2009, pet. ref'd). “The constitutional validity of a guilty plea made upon the advice of counsel depends on whether counsel’s performance was reasonably competent, rendering a defendant effective representation during the particular proceedings.” Battle, 817 S.W.2d at 83.

As many cases have noted, the right to counsel does not mean the right to error-less counsel. Robertson v. State, 187 S.W.3d 475, 483 (Tex.Crim.App.2006). In order to prevail on a claim of ineffective assistance of counsel, the defendant must satisfy the two-pronged test set forth in Strickland v. Washington. 466 U.S. 668, 687-88, 104 S.Ct. 2052, 80 L.Ed.2d 674 (1984); see also Ex parte Imoudu, 284 S.W.3d 866, 869 (Tex.Crim.App.2009). The United States Supreme Court and the Texas Court of Criminal Appeals have held that the Strickland test applies to challenges to guilty pleas based on ineffective assistance of counsel. Hill v. Lockhart, 474 U.S. 52, 58-59, 106 S.Ct. 366, 88 L.Ed.2d 203 (1985); see also Imoudu, 284 S.W.3d at 869; Battle, 817 S.W.2d at 84.

The first prong requires a showing that (1) counsel’s performance fell below an objective standard of reasonableness. Strickland, 466 U.S. at 687, 104 S.Ct. 2052. This requirement can be difficult to meet since there is “a strong presumption that counsel’s conduct falls within the wide range of reasonable professional assistance.” Id. at 689, 104 S.Ct. 2052. Those “strategic choices made after thorough investigation of law and facts relevant to plausible options are virtually unchallengeable.” Wiggins v. Smith, 539 U.S. 510, 521-22, 123 S.Ct. 2527, 156 L.Ed.2d 471 (2003) (quoting Strickland, 466 U.S. at 690-91, 104 S.Ct. 2052).

The second Strickland prejudice prong requires a showing that but for counsel’s unprofessional error, there is a reasonable probability that the result of the proceeding would have been different. Strickland, 466 U.S. at 687-88, 104 S.Ct. 2052; Imoudu, 284 S.W.3d at 869. A defendant challenging a guilty plea satisfies the prejudice requirement of Strickland by showing a reasonable probability that absent counsel’s deficient performance, he would not have pleaded guilty and would have insisted on going to trial. Hill, 474 U.S. at 59, 106 S.Ct. 366. “Reasonable probability” means a “probability sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at 694, 104 S.Ct. 2052. Strickland’s second prong carries a lower burden of proof than the preponderance of the evidence standard. See Bouchillon v. Collins, 907 F.2d 589, 595 (5th Cir.1990); Strickland, 466 U.S. at 694, 104 S.Ct. 2052. An appellant need not show that counsel’s deficient performance more likely than not altered the outcome of the case. Milburn v. State, 15 S.W.3d 267, 269 (Tex.App.-Houston [14th Dist.] 2000, pet. ref'd).

A failure to make a showing under either prong defeats a claim for ineffective assistance. Rylander v. State, 101 S.W.3d 107, 110-11 (Tex.Crim.App.2003). Allegations of ineffectiveness must be firmly founded in the record. Bone v. State, 77 S.W.3d 828, 835 (Tex.Crim.App.2002). The Strickland test “of necessity requires a case-by-case examination of the evidence.” Williams v. Taylor, 529 U.S. 362, 391, 120 S.Ct. 1495, 146 L.Ed.2d 389 (2000).

II. Hart’s Guilty Plea Was Based on Counsel’s Advice that Hart Was Eligible to Receive Community Supervision

When Hart’s appointed counsel met with Hart, he believed Hart “may not be competent to answer to the State’s Indictment.” According to counsel, Hart did “not seem to understand the proceedings or the allegations against him.” The trial court granted a motion for psychiatric examination to be conducted by the court’s appointed expert Dr. David Bell.

Bell conducted a competency evaluation concluding Hart “has a factual and rational understanding of his charges,” was able to disclose facts, events, and states of mind, and could engage in a reasoned choice of legal strategies and options. Bell did not conduct tests on Hart but relied on an interview and review of previous records. The Bell report concluded in regard to Hart’s condition that it “diminishes it but does not prohibit” Hart from engaging with counsel in a reasonable and rational manner. During the evaluation, Hart stated “he would like to ‘get out of jail’ and ‘get probation.’ ” Hart’s statement was based upon advice from his counsel.

During the motion for new trial, Hart’s counsel testified community supervision was a viable option for Hart. He claimed Hart “told me on several occasions, told [private investigator Jim] Chadwick, without me present, on several occasions, he wanted to plead guilty and go to the Court for punishment to get probation.” Although counsel read the Bell report, he did not discuss it with Bell and did not attempt to ascertain from Bell the degree which Hart’s condition diminished his ability to rationally engage with his attorney. Even though Hart’s counsel read the Bell report, at the hearing during which Hart entered his guilty plea, he mischaracterized Hart’s level of mental retardation as “mild” instead of the “moderate” level as contained in the report and, after restating Bell’s conclusion that Hart was competent to testify, the following plea exchange occurred:

THE COURT: All right. Mr. Hart, in Counts One, Two and Three you are charged with aggravated sexual assault of a child. As to Count One, how do you wish to plead, guilty or not guilty?
[BY HART]: Not guilty.
THE COURT: Sir?
[BY HART]: Say again.
THE COURT: Guilty or not guilty?
[BY HART]: Not—
[HART’S COUNSEL]: Pleading guilty. Tell the Judge.
[BY HART]: Guilty.
THE COURT: Okay. And as to Count Two, how do you wish to plead?
[BY HART]: Guilty. Guilty.

When asked why he pled guilty, Hart said his counsel “told me to say that. I did not want to say that,” and “the attorney told me to tell the judge I’d done it. The attorney told me I’ll get probation or go to jail for a long time.”

During punishment, counsel advised Hart to take the stand and again plead guilty in front of the jury. He believed “that once [Hart] testified, which he did, and did very well, I believe that — I thought that the jury would, at least, consider probation.” Hart testified:

I put his — his privates in his mouth— and he put his dick — and he got my dick in his mouth. And did — I done — I do [sic] that. And — and other stuff. And I — he—I went — I went behind the shed to use the bathroom. He followed me behind the shed and he put his pants down and he took — and stuff. So — so I — he said — get his buckled....
He asked me to get his buckle. Do his buckle. And I done that. He pulls his pants down. Started pissing. I tell him to leave but he didn’t leave.

The following was also developed:

Q. Aaron, are you a little nervous?
A. [By Hart] Kind of.
Q. Kind of nervous. You testified earlier that you stuck your private parts in his mouth?
A. Yes.
Q. Why did you do that?
A. Because I had — I was — got—I was thinking about the voice in my head. And I was dizzy at that time....
Q. Do you know that it was wrong to do what you did with [T.P.]?
A. Yes, I know it was wrong. And I think that too. I don’t mean to....
A. And — and I know it was wrong but — I know I do it, but I didn’t mean to do it in the first place — inside my head — and some — something come— something popped in my head and telling me to do that, do that. But I — I kind of stopped it, but I didn’t stop that time.

The State elicited:

Q. You do know the difference between right and wrong, don’t you?
A. No, I don’t.
Q. If you have sex with a little boy, that’s wrong?
A. Yes.
Q. And when you were doing this to [T.P.] you were enjoying it, weren’t you?
A. No.
Q. It didn’t feel good?
A. No.
Q. Well, why did you ask him to do it if it didn’t feel good?....
A. I was — I had something in my head and stuff—
Q. Okay.
A. —and I was dizzy.

Hart’s father and sister took the witness stand during punishment and expressed their belief that Hart should be placed on community supervision. Other than Hart, these were the sole witnesses called by the defense. Hart’s sister described him as “slow,” said he was in special classes, and told the jury that Hart could accomplish simple tasks. Hart’s father also said Hart was in special education classes and was described as “MR.” Even though Hart’s defense was relying on the hope of leniency based on his mental retardation, no evidence was submitted to the jury that used the term “mentally retarded” or any variation of that phrase. Given the speech impediment with which Hart is afflicted, it is impossible to determine how much the fact that Hart’s testimony was disjointed was attributed by the jury to his retarded condition and how much of it the jurors might have determined was due to the speech impediment. Despite this, without any further evidence or testimony introduced to the jury, Hart’s counsel argued during closing argument that Hart was “obviously mentally retarded” and asked the jury to award him community supervision.

III. Because Hart Was Not Eligible for Community Supervision, Counsel’s Advice to Plead Guilty on that Basis Constituted Ineffective Assistance

“Due process requires that each defendant who pleads guilty does so with a ‘full understanding of the charges against him and the consequences of his plea.’” Burke v. State, 80 S.W.Bd 82, 93 (Tex.App.-Fort Worth 2002, no pet.) (citing Basham v. State, 608 S.W.2d 677, 678 (Tex.Crim.App. [Panel Op.] 1980)). Thus, even assuming “that the prosecutor had overwhelming evidence of guilt,” without adequate proof that a defendant “in fact understood the charge, the plea cannot be voluntary.” Henderson v. Morgan, 426 U.S. 637, 644-45, 96 S.Ct. 2253, 49 L.Ed.2d 108 (1976). A guilty plea will not support a conviction where motivated by significant misinformation conveyed by defense counsel because it cannot be considered voluntarily and knowingly made. Burke, 80 5.W.3d at 93 (citing Battle, 817 S.W.2d at 83; Ex parte Kelly, 676 S.W.2d 132, 134-35 (Tex.Crim.App.1984); Cardenas v. State, 960 S.W.2d 941, 943 (Tex.App.-Texarkana 1998, pet. ref'd)).

In addition to the previous statements concerning Hart’s degree of mental acuity, it is worthwhile to review some of the other evidence presented regarding this, both during trial and in the motion for new trial. Hart has an extremely low range of functioning, including difficulty remembering the year he was born. Out of four diagnostic tests, three of Hart’s scores place him at a mental functioning of less than six years of age. The remaining test assesses his mental age at 6.2 years. Additionally, he has a moderate to severe speech impairment. According to Hart’s father,

[he] can’t count money, does not know his right shoe from his left shoe, can’t run bath water for himself, can’t shave, can’t cook, has poor verbal communication, can’t read or write, can’t clean a room, likes toys designed for 5 to 6 year old children, and loves cartoons.
He began carrying a string in his pocket at age 8, and he talked to the string every day and night, and he to the present talks to a piece of string. He could never explain what a television show was about. He would mix up the days of the week.

However, the degree of mental retardation from which Hart suffers is less determinative here than the cogent fact that he was provided patently incorrect information upon which he relied in entering a guilty plea. Even a person of genius status requires somewhat correct data in order to make an informed decision.

“A defendant is not eligible for community supervision” recommended by a jury “if the defendant ... is convicted of an offense listed in Section 3g(a)(l)(C), (E), or (H), if the victim of the offense was younger than 14 years of age at the time the offense was committed.” Tex.Code Crim. Proc. Ann. art. 42.12, § 4(d)(5) (Vernon Supp.2009). These sections prohibit imposition of community supervision for convictions of indecency with a child and sexual assault. TexCode Crim. Proc. Ann. art. 42.12, § 3g(a)(l)(C), (H) (Vernon Supp. 2009). Hart pled and was found guilty of sexual assault and indecency with a child. Therefore, he was never eligible for community supervision upon conviction of these charges.

Here, the record is clear that Hart pled guilty while fully believing his counsel’s advice that he was eligible to receive community supervision. In Battle, the Texas Court of Criminal Appeals found the defendant’s guilty plea involuntary where it was based on counsel’s advice that the defendant was eligible for community supervision when, in fact, he was not. 817 S.W.2d at 88; see Cardenas, 960 S.W.2d at 946-47 (finding counsel ineffective based on erroneous advice that defendant could receive community supervision). Further, the court concluded that counsel’s performance was deficient and that his deficient performance prejudiced the defense. Battle, 817 S.W.2d at 84; see Ex parte Briggs, 187 S.W.3d 458, 469 n. 34 (Tex.Crim.App.2005). As in Battle and Cardenas, we conclude that counsel’s failure to consult the Texas Code of Criminal Procedure while advising Hart to plead guilty without the benefit of a plea bargain based on an erroneous belief that he was entitled to community supervision fell below an objective standard of reasonableness. Further, we conclude that Hart’s statements that his counsel “told me to [plead guilty], I did not want to say that,” and “[t]he attorney told me I’ll get probation or go to jail for a long time” satisfies the prejudice requirement of Strickland because it demonstrates, with a probability sufficient to undermine confidence in the outcome that absent counsel’s deficient performance, Hart would not have pled guilty. See Helton v. State, 909 S.W.2d 298, 299 (Tex.App.-Beaumont 1995, pet. ref'd); Matthews v. State, 830 S.W.2d 342, 345 (Tex.App.-Houston [14th Dist.] 1992, no pet.).

IV. CONCLUSION

We reverse the judgment and remand to the trial court for proceedings consistent with this opinion.

      . Hart also complains his counsel's ineffectiveness, in failing to consider or admonish Hart on the availability of the diminished capacity defense, led to an involuntary guilty plea, a ground which we need not consider. Texas does not recognize diminished capacity as an affirmative defense. Ruffin v. State, 270 S.W.3d 586, 593 (Tex.Crim.App.2008); Jackson v. State, 160 S.W.3d 568, 573 (Tex.Crim.App.2005); see Rhoten v. State, 299 S.W.3d 349 (Tex.App.-Texarkana 2009, no pet.). Rather, it is a "failure-of-proof defense in which the defendant claims that the State failed to prove that the defendant had the required state of mind at the time of the offense.” Jackson, 160 S.W.3d at 573-74.

      . The test of incompetency is whether a defendant has "sufficient present ability to consult with his lawyer with a reasonable degree of rational understanding — and whether he has a rational as well as factual understanding of the proceedings against him.” Dusky v. United States, 362 U.S. 402, 402, 80 S.Ct. 788, 4 L.Ed.2d 824 (I960); Tex.Code Crim. Proc. Ann. art. 46B.003(a) (Vernon 2006). When asked to evaluate the effect of Hart's mental retardation on the capacity to engage with counsel in a reasonable and rational manner, Bell wrote it "diminishes it but does not prohibit it.” Without further explanation of this finding, Bell concluded Hart was competent to testify.

      . Dr. Vincent Ramos evaluated Hart for competency to stand trial. He stated in his report attached to the motion for new trial that Hart's motivation for pleading guilty "could have been his belief it would result in an immediate reward, such as going home and probation.” In an audio recorded confession to the police, Hart shared details of the incident with T.P., and then asked officers if he could go home and collect the money owed to him for mowing the yard.

      . Hart later contradicted his testimony by stating the actions with T.P. "felt good.”

      . During the hearing on Hart’s motion for new trial, Hart’s teacher for four years and his high school principal testified about the degree of his mental retardation. They both explained that Hart had difficulty understanding abstract terminology and the severity of the wrong committed with T.P. Ramos testified Hart did not understand the terms "guilty” or "appeal” during his evaluation. Hart had a constitutionally protected right to provide the jury with mitigating evidence that his trial counsel either failed to discover or failed to offer. Williams v. Taylor, 529 U.S. at 393, 120 S.Ct. 1495; see Freeman v. State, 167 S.W.3d 114, 117-18 (Tex.App.-Waco 2005, no pet.) (finding mother’s lay testimony regarding defendant’s mental health, coupled with counsel’s failure to investigate, led to lack of mitigation evidence in form of Freeman’s mental health history which "clearly would have been admissible”). He argues that counsel was ineffective for failing to introduce evidence of his mental retardation in front of the jury during punishment. Even though "it is sheer speculation that evidence of his” mental retardation “would have in fact favorably influenced the jury's assessment of punishment,” Hart’s jury could have "possibly been influenced by it.” Freeman, 167 S.W.3d at 121.

      . See Act of May 18, 2007, 80th Leg., R.S., ch. 593, §§ 1.06, 4.01(a), 2007 Tex. Gen. Laws 1120, 1123, 1148 (making change in law effective for offenses committed on or after September 1, 2007).


source: Caselaw Access Project

author: SAM GRIFFITH, Justice.

license: Public Domain

text:
    Leroy J. WILLIAMS, Appellant, v. The STATE of Texas, Appellee.
    No. 12-08-00431-CR.
    Court of Appeals of Texas, Tyler.
    Jan. 29, 2010.
    Discretionary Review Refused May 19, 2010.

      Austin R. Jackson, for Appellant.
    Carolyn Mills, Michael J. West, for Ap-pellee.
    Panel consisted of WORTHEN, C.J., GRIFFITH, J., and HOYLE, J.
   MEMORANDUM OPINION

SAM GRIFFITH, Justice.

Leroy Williams appeals from his conviction for aggravated robbery. In three issues, Appellant argues that the trial court erred in allowing the State to impeach him with an offense for which he was not convicted and by not giving jury instructions he requested on a lesser included offense and self-defense. We reverse and remand for a new trial.

Background

On February 25, 2008, Appellant stole various items from a car, including a compact disk player, several compact disks, and a cellular telephone. A young man saw Appellant taking items from the car, notified his father, who was nearby, and called the police. The young man’s father, Josué Tovar, approached Appellant. According to Tovar and his son, Appellant struggled with them and pulled a knife to facilitate his escape. According to Appellant’s version of events, he complied with Tovar’s request to return the property and sat on the curb to await the police. Appellant would later testify that after he had been sitting on the curb waiting for the police for some time, Tovar suddenly attacked him with a stick and Tovar and his son began wrestling with him. To defend himself, Appellant said that he pulled out and opened a pocket knife.

Appellant’s jaw was broken in the melee, and the police arrived and arrested him. He was indicted for the felony offense of aggravated robbery. The indictment alleged that Appellant used a deadly weapon, the knife, with the intent to obtain or maintain control over the stolen property. Appellant pleaded not guilty, and a jury trial was held. At the conclusion of the guilt-innocence portion of the trial, Appellant requested that the jury be instructed that it could find him guilty of the lesser included offense of theft or that it could find him not guilty if it found that he acted in self-defense. The State opposed Appellant’s request for these instructions, and the trial court declined to give them. The jury found Appellant guilty as charged and assessed punishment at imprisonment for thirty-seven years. This appeal followed.

Impeachment with Prior Unadjudicated Offense

In his first issue, Appellant argues that the trial court erred in allowing the State to impeach him with a prior offense for which he had not been found guilty.

Background

Appellant testified during the guilt-innocence portion of his trial. Early in the cross examination, the assistant district attorney offered a penitentiary packet showing that Appellant had previously been convicted and sentenced to prison for the felony offense of burglary of a habitation. Appellant admitted that the packet accurately reflected one of his prior convictions. Later, during recross examination, the State’s lawyer asked Appellant to identify another exhibit, this one a motion to dismiss pursuant to Texas Penal Code section 12.45.

This was a motion from a case that was not the burglary case, but bore a cause number that came sequentially one number after the cause number in the burglary case. In the motion, the State asserts that Appellant was sentenced to four years in prison on the burglary case and requests that the second case be dismissed because it had been taken into consideration in the assessment of punishment in yet another case. The attorney asked Appellant if, as part of his plea in the burglary case, he had also admitted that he committed another felony, specifically unauthorized use of a motor vehicle. Appellant admitted that he had done so but said that it was his nephew’s car he had been driving. After a series of questions and answers on that subject, Appellant’s attorney asked to approach the bench. At the bench, he objected to “the mention or use of the 12.45.” The trial court overruled his objection.

Analysis

The court of criminal appeals has recently held that offenses taken into consideration pursuant to section 12.45 may not be used to impeach a defendant’s testimony pursuant to Texas Rule of Evidence 609. See Lopez v. State, 253 S.W.3d 680, 683, 686 (Tex.Crim.App.2008). The State does not argue that the cross examination was proper. Instead, the State argues that the complaint is not preserved because Appellant’s objection was not timely.

A timely complaint is a prerequisite to appellate review. See Tex.R.App. P. 33.1(a)(1). The objection in this case came after several questions were asked and answered about the unauthorized use of a motor vehicle. Accordingly, this complaint is not preserved for appellate review. Cf. Gender v. State, 115 S.W.3d 11, 15-16 (Tex.Crim.App.2003) (Appellant preserved complaint by objecting at a bench conference prior to questions being asked about an offense that was not admissible.). We overrule Appellant’s first issue.

Jury Instructions

In his second and third issues, Appellant argues that the trial court erred by not instructing the jury on the lesser included offense of theft and the law regarding self-defense.

Standard of Review and Applicable Law

Article 36.14 of the code of criminal procedure requires the trial court to deliver to the jury “a written charge distinctly setting forth the law applicable to the case....” Tex.Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). Upon the defendant’s request, a trial court must include a lesser included offense instruction in the jury charge if the offense is a lesser included offense and there is some evidence that, if the defendant is guilty, he is guilty only of the lesser offense. See Guzman v. State, 188 S.W.3d 185, 188 (Tex.Crim.App.2006).

An offense is a lesser included offense if (1) it is established by proof of the same or less than all the facts required to establish the commission of the offense charged; (2) it differs from the offense charged only in the respect that a less serious injury or risk of injury to the same person, property, or public interest suffices to establish its commission; (3) it differs from the offense charged only in the respect that a less culpable mental state suffices to establish its commission; or (4) it consists of an attempt to commit the offense charged or an otherwise included offense. See Tex.Code Crim. Proc. Ann. art. 37.09 (Vernon 2006); see also Hall v. State, 225 S.W.3d 524, 527 (Tex.Crim.App.2007).

Anything more than a scintilla of evidence may be sufficient to entitle a defendant to a charge on the lesser offense. Hall, 225 S.W.3d at 536. “[I]t is not enough that the jury may disbelieve crucial evidence pertaining to the greater offense, but rather, there must be some evidence directly germane to the lesser-included offense for the finder of fact to consider before an instruction on a lesser-included offense is warranted.” See Hampton v. State, 109 S.W.3d 437, 441 (Tex.Crim.App.2003). We review all evidence presented at trial to make this determination. See Rousseau v. State, 855 S.W.2d 666, 673 (Tex.Crim.App.1993). If the evidence raises the issue of a lesser included offense, a jury charge must be given based on that evidence “whether [the evidence supporting it was] produced by the State or the defendant and whether it be strong, weak, unimpeached, or contradicted.” Id. at 672.

With exceptions that are not relevant here, a person is justified in using force against another when and to the degree the actor reasonably believes the force is immediately necessary to protect the actor against the other’s use or attempted use of unlawful force. See Tex. Penal Code Ann. § 9.31 (Vernon Supp. 2009). When properly requested, the trial court must instruct the jury on every defensive theory raised by the evidence, and it makes no difference whether such evidence or testimony was produced by the prosecution or the defense or whether such defensive evidence or testimony might be strong, weak, unimpeached, or contradicted. See Ferrel v. State, 55 S.W.3d 586, 591 (Tex.Crim.App.2001); Smith v. State, 676 S.W.2d 584, 586-87 (Tex.Crim.App.1984). However, before a defendant is entitled to a jury instruction on self-defense, the defendant must provide some evidence that, when viewed in the light most favorable to the defendant, will support the self-defense claim. See Zuliani v. State, 97 S.W.3d 589, 594 (Tex.Crim.App.2003); Ferrel, 55 S.W.3d at 591; Hill v. State, 99 S.W.3d 248, 250 (Tex.App.-Fort Worth 2003, pet. ref'd). In other words, a defendant must provide some evidence that he was authorized to use deadly force under section 9.31 or section 9.32 of the Texas Penal Code. See Tex. Penal Code Ann. § § 9.31, 9.32 (Vernon Supp.2009).

Self-defense Instruction

In his third issue, Appellant argues that the trial court erred by denying his request for a self-defense instruction. Specifically, he argues that his brandishing of the knife was excused because he was defending himself from an assault by To-var.

Citing Young v. State, 991 S.W.2d 835, 838 (Tex.Crim.App.1999) and Ex parte Nailor, 149 S.W.3d 125, 134 (Tex.Crim.App.2004), the State argues that Appellant was not entitled to a self-defense instruction because he did not admit that he committed an aggravated robbery. We agree with these statements generally, although it is not necessarily required that a defendant confess to the crime alleged in the indictment. See Willis v. State, 790 S.W.2d 307, 314 (Tex.Crim.App.1990). In some cases a defendant “will be entitled to defensive instructions although he has not admitted a crime.” Id. A defendant must, however, admit the relevant conduct and that he acted with the requisite intent. See Nailor, 149 S.W.3d at 133; Young, 991 S.W.2d at 839.

As alleged in the indictment, the State was required to prove that Appellant “while in the course of committing theft of property and with intent to obtain or maintain control of said property, intentionally or knowingly threatened] or plaeefd] Jo-sué Tovar in fear of imminent bodily injury or death, and the defendant did then and there use or exhibit a deadly weapon, to-wit: a knife.” Appellant admitted all of the relevant facts that were alleged in the indictment. He admitted that he stole the items, and he admitted that he brandished the knife to get away from Tovar. But, as the court of criminal appeals has recently held, he was also required to admit that he acted with the requisite culpable mental state before he could be entitled to an instruction on an affirmative defense such as necessity or self-defense. See Shaw v. State, 243 S.W.3d 647, 659 (Tex.Crim.App.2007). As the court said in that case, if the defensive evidence in support of a necessity or a self-defense instruction merely “negates the necessary culpable mental state, it will not suffice to entitle the defendant to a defensive instruction.” Id.

In this case, Appellant’s version of events merely negates the culpable mental state. He did not admit that he brandished the knife to further or complete the theft. Instead, he testified that he threatened Tovar to protect himself from an additional unlawful assault. Therefore, and in accordance with Shaw, Appellant was not entitled to an instruction on the law of self-defense because he did not admit the essential conduct along with the requisite mental state. We overrule Appellant’s third issue.

Lesser Included Offense Instruction

In his second issue, Appellant argues that the trial court erred in not giving a requested instruction on the lesser included offense of theft.

A two prong test is applied to determine whether an appellant was entitled to an instruction on a lesser included offense. See Campbell v. State, 149 S.W.3d 149, 152 (Tex.Crim.App.2004); Rousseau v. State, 855 S.W.2d 666, 672-73 (Tex.Crim.App.1993). First, to be considered a lesser included offense, the lesser offense must be included within the proof necessary to establish the offense charged. Campbell, 149 S.W.3d at 152; Rousseau, 855 S.W.2d at 672-73. Second, some evidence must exist in the record that would permit a jury to rationally find that, if the defendant is guilty, he is guilty only of the lesser included offense. Campbell, 149 5.W.3d at 152; Rousseau, 855 S.W.2d at 672-73.

The State agrees that theft is included in the definition of robbery. See Tex. Penal Code Ann. § 29.02 (Vernon 2003). Therefore, the first prong of the test is satisfied. The State argues the trial court properly declined to instruct the jury on the lesser included offense of theft because there was “absolutely no evidence offered at trial which would support a finding that Appellant committed the theft without committing the aggravated robbery.” The State argues this is so because, even under Appellant’s version of the offense, he committed an aggravated assault — brandishing the knife — while he maintained control of a cellular telephone he had stolen earlier from the parked car. Accordingly, the State reasons that Appellant was involved in a continuous criminal episode beginning with his theft from the vehicle, with a midpoint being his assault with the knife, and ending when he surrendered to the police. As such, Appellant was still committing a theft when he committed an assault with a deadly weapon, making the offense an aggravated robbery.

This construction of events, however, does not give full weight to Appellant’s testimony. It was unexplored at trial, but the evidence did show that Appellant had a cellular telephone in his pocket that he had taken from the car when he was arrested after the melee. But his testimony was that he brandished the knife to escape the unprovoked attack by the Tovars and not, at least by implication, that he did so to facilitate or perpetuate his theft of the cellular telephone. Furthermore, his testimony that he sat on the curb to wait for the police is consistent with having abandoned his theft. The robbery statute, which the aggravated robbery statute incorporates, requires that the actor threaten the other person with the intent to obtain or maintain control over the stolen property. See Tex. Penal Code Ann. §§ 29.02(a), 29.03 (Vernon 2003). The jury was entitled to disbelieve Appellant’s version of events. But Appellant was only required to demonstrate that there was a scintilla of evidence to show that he is guilty only of the lesser offense, and even so, that evidence may be weak, impeached, or contradicted. See Rousseau, 855 S.W.2d at 672. As we explained in the earlier section, if Appellant’s threatening of Tovar with the knife was done with an intent other than to perpetuate or escape following a theft, he was not guilty of aggravated robbery.

For this reason, three of the cases relied upon by the State can be distinguished from this case. In Oggletree v. State, 851 S.W.2d 367, 868-70 (Tex.App.-Houston [1st Dist.] 1993, pet. ref'd), the court held that a thief who returned to attempt to “liberate his confederate” was continuing the same criminal episode and, as such, was not entitled to an instruction on the lesser included offense of theft. In Rabb v. State, 681 S.W.2d 152, 153-54 (Tex.App.-Houston [14th Dist.] 1984, pet. ref'd), the court held that a defendant was not entitled to a jury instruction on a lesser included offense when the defendant pulled a gun on a security guard after being asked for identification while in the course of attempting to assist with a fraudulent credit card transaction. And in Nottingham v. State, No. 07-08-0131-CR, 2009 WL 224075, 2009 Tex.App. LEXIS 649 (Tex.App.-Amarillo Jan. 30, 2009, no pet.) (mem. op., not designated for publication), the court held that the defendant was not entitled to an instruction on the lesser included offense of assault because there was no evidence by which the jury could conclude that he was guilty of only that offense. The Oggletree and Rabb decisions both are based on the definition of the “course of committing theft,” which, by statute, includes the “immediate flight after the attempt or commission of theft.” Tex. Penal Code Ann. § 29.01(1) (Vernon 2003). In those cases, the participants were attempting to make their immediate flight when they assaulted another. By contrast, Appellant testified that he had complied with Tovar’s request that he sit on the curb and await the police when Tovar began striking him with a stick. His testimony is at least slight evidence that he was not in flight when he brandished the knife. This case may be distinguished from Nottingham because Appellant’s testimony was at least slight evidence that Appellant was guilty only of theft.

Appellant’s testimony that his use of force was not done with the intent to facilitate a theft but rather to fend off an unprovoked assault may be weak evidence, and it was certainly contradicted by the testimony of the Tovars. But it is sufficient for a jury who believed it to conclude that Appellant was guilty of theft but not robbery. In Jones v. State, 984 S.W.2d 254, 258 (Tex.Crim.App.1998), the court of criminal appeals held that a defendant was entitled to an instruction on the lesser offense of theft. The Jones decision is factually similar to this case in that two loss prevention employees confronted the appellant after they observed him stealing items from a store. Id. at 255. He assaulted the two women, punching one in the face and biting the other on the chest. Id. The defendant testified that he did not steal anything and that he only assaulted the women in self-defense. Id. at 255-56. The court held that the defendant was entitled to jury instructions on both simple assault and theft because, based on his testimony, the jury could believe that he was guilty only of either of those lesser included offenses. Id. at 257-58.

Applying that decision here, the jury, if it believed Appellant’s testimony that he committed a theft and then lawfully defended himself from an assault after he had surrendered, could have concluded that he was guilty only of theft as a lesser included offense of aggravated robbery. Accordingly, Appellant was entitled to have the jury instructed on the lesser included offense of theft.

Harm

Having found error in the trial court’s denial of the requested instruction on the lesser included offense of theft, we must now determine whether that error requires reversal. See Tex.Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984) (op. on reh’g); see also Posey v. State, 966 S.W.2d 57, 62 n. 12 (Tex.Crim.App.1998) (holding that Alman-za applies to an erroneous omission in the jury charge of a timely requested defensive issue raised by the evidence, as the defensive issue becomes law “applicable to the case”). If the charge contains error, and that error has been properly preserved by an objection or requested instruction, reversal is required if the error is “calculated to injure the rights of defendant,” meaning there must be some harm. Tex.Code Crim. Proc. Ann. art. 36.19; Trevino v. State, 100 S.W.3d 232, 242 (Tex.Crim.App.2003); Almanza, 686 S.W.2d at 171. The degree of harm must be considered in light of the entire jury charge, the state of the evidence, including the contested issues and weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record of the trial as a whole. See Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App.2000).

The question of whether Appellant acted to perpetuate his theft or to protect himself from the Tovars was the central issue in this trial. If Appellant acted in self-defense, as he testified, he was guilty of theft but not of aggravated robbery. Harm exists when the penalty imposed for the charged offense exceeds the potential penalty for the lesser included offense. See Bignall v. State, 899 S.W.2d 282, 284 (Tex.App.-Houston [14th Dist.] 1995, no pet.). Harm also generally exists whenever the failure to submit a lesser included offense leaves the jury with the sole option of either convicting defendant of the greater offense or acquitting him. Saunders v. State, 913 S.W.2d 564, 571 (Tex.Crim.App.1995).

The value of the items in question here was not conclusively shown, but theft of property valued at less than $1,500 is a misdemeanor. Appellant would have had to steal property valued at $200,000 or more to have been eligible for punishment for a first degree felony, which is what he faced in this case. See Tex. Penal Code Ann. §§ 29.08(b), 31.03(e)(8), (7), (Vernon 2003 & Supp.2009). Appellant received a sentence of thirty-seven years, which is more than he would have received if he had been convicted of theft. And there is no intervening lesser included offense that the jury rejected which would allow us to conclude that the jury had not been placed on the horns of the dilemma of whether to convict Appellant of the only offense available to them or to set him free. See Masterson v. State, 155 S.W.3d 167, 171-72 (Tex.Crim.App.2005), see also Beck v. Alabama, 447 U.S. 625, 634, 100 S.Ct. 2382, 2388, 65 L.Ed.2d 392 (1980).

Accordingly, we conclude that Appellant suffered some harm, and we sustain Appellant’s third issue.

Disposition

Having sustained Appellant’s third issue, we reverse and remand for a new trial.

      . Texas Penal Code section 12.45 permits a defendant, with the prosecutor’s consent, to admit guilt of an unadjudicated extraneous offense and to have that offense taken into account by the trial court when assessing a sentence for another offense. Tex Penal Code Ann. § 12.45(a) (Vernon 2003). When this procedure is employed, it acts as a bar to any future prosecution for the extraneous offense. Id. § 12.45(c).

      . The burglary case had a cause number of 241-1016-04. The case being dismissed had a cause number of 241-1017-04. The case in which the dismissed case had been taken into consideration had a cause number of 241-8989-04. It is possible that the last cause number was a typographical error and that the pleading should have reflected that the offense in cause number 241-1017-04 was taken into consideration in the burglary case.

      . The statute requires that a defendant admit guilt during the sentencing hearing of the case for which he will be sentenced. See Tex. Penal Code Ann. § 12.45(a). The document offered by the State does not reflect that this occurred and does not contain any admissions by Appellant.

      . Texas Rule of Evidence 609(a) allows for attacking the credibility of a witness with evidence that the witness "has been convicted of a crime.”

      . One of the exceptions is that a person resorting to self-defense must not be engaged in criminal activity. See Tex Penal Code Ann § 9.3l(a)(C)(3), 9.32(a)(C)(3). The State does not argue that this provision applies, and Appellant’s testimony can be considered evidence that he was not engaged in criminal activity at the time he alleges he came under attack.

      . If the jury believed Appellant’s testimony, they would have necessarily concluded that he drew the knife to defend himself and without the intent to obtain or maintain control of stolen items.

      . The State asserts that Jones can be distinguished because there was "some evidence that the offender was not in possession of the stolen property at the time of his assaultive conduct.” According to the court's decision, the loss prevention employees “recovered deodorant, Ben Gay and Blistex from appellant’s pockets” and "he had not paid for these items before removing them from Fiesta.” Jones, 984 S.W.2d at 255. The State is correct that the defendant in Jones testified that he did not commit a theft. But this is relevant to whether that defendant was entitled to an instruction on the lesser included offense of assault. See id. at 257 ("Here, appellant’s testimony that he did not steal or intend to steal negated the theft element of the robbery charge. If the jury believed appellant’s testimony that he did not steal and believed the State's evidence that he struck Michelle Yan-cey, they could rationally conclude that appellant committed assault and not theft.”). With respect to the instruction on the lesser included offense of theft, the court held that the defendant's assertion that he committed the assault in self-defense was sufficient to require that an instruction for theft be given. Id. at 258 ("The same theory can be applied to appellant’s testimony that he did not assault anyone in Fiesta. Appellant admitted only that he 'did self-defense.' The jury was free to believe this testimony by appellant, and disbelieve the rest of what he said. As with the instruction on the lesser included offense of misdemeanor assault, this evidence would have entitled appellant to his requested instruction on the lesser included offense of misdemeanor theft.”).


author: STEVEN C. HILBIG, Justice.

text:
    Frances Ann LOPEZ, Appellant, v. STATE of Texas, Appellee.
    No. 04-08-00695-CR.
    Court of Appeals of Texas, San Antonio.
    Feb. 3, 2010.

      Angela J. Moore, Chief Public Defender, San Antonio, TX, for Appellant.
    Crystal D. Chandler, Assistant Criminal District Attorney, San Antonio, TX, for Appellee.
    Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
   OPINION

Opinion by:

STEVEN C. HILBIG, Justice.

Frances Ann Lopez was sentenced to thirty years in prison after a jury convicted her of murdering her husband. Lopez appeals the judgment, complaining the trial court erred in: (1) denying her motion to suppress statements she made to investigators; (2) ruling on several evidentiary matters; and (3) failing to grant a mistrial when the prosecutor commented during closing argument on her failure to testify. We affirm the judgment of the trial court.

Background

On January 8, 2006, Eloy Hernandez Jr. was found dead in his home by Lopez and her daughter. Bexar County Deputy Sheriff, George Barrera, Jr., testified Lopez told him she left her home the morning of January 7, 2006 and did not return until 1:40 a.m. on January 8, 2006. Lopez told Barrera that when she arrived home she noticed the front door open and after entering she found her husband’s body on their bed. She then yelled to her daughter to call the Bexar County Sheriffs office to report the death.

Sergeant Martin Molina also spoke with Lopez and asked if she knew of anyone who might have wanted to harm her husband. Lopez told Sergeant Molina that Hernandez had a girlfriend who had made threatening comments toward Lopez and her family. Lopez agreed to provide a statement, and she and her daughter rode with Lopez’s sister to the sheriffs office.

At the sheriffs office, Lopez’s sister and daughter were seated in a lobby area, and Lopez was taken into an office in the criminal investigations section. Detective David Davila, a homicide investigator with the sheriffs office, took Lopez’s statement by having her sit next to him so she could see the screen as he typed the information she provided. Lopez made corrections to the statement as it was being typed. At one point during this process, Lopez agreed to undergo a gunshot residue (GSR) test to determine if she had recently fired a gun. According to Detective Davila, Lopez claimed to have fired her pistol earlier in the week. Detective Davi-la testified he left the room after the statement was completed to allow Lopez time to review the statement before signing it. Detective Davila discussed the statement with Sergeant Molina and told him he was concerned about several inconsistencies in Lopez’s statement. Detective Davila told Sergeant Molina that if Lopez signed the statement, he intended to advise her of her “Miranda” rights.

Detective Davila returned to the office and asked Lopez if any part of the statement needed to be changed. According to Detective Davila, Lopez commented that the statement made her “look bad,” but when asked if she wanted to change anything she declined and signed the statement. Detective Davila told Lopez he was going to advise her of her rights because there were inconsistencies in her statement that required further questioning. Detective Davila testified Lopez began to cry while he was reading her rights from a card. However, she signed the card, indicating she understood her rights against self-incrimination. Detective Davi-la then turned and looked at Lopez and said “You shot him, right?” Detective Da-vila testified Lopez nodded in agreement. Detective Davila asked her if she wanted to tell him about it, and Lopez said “No, you’ll put me in jail.” Lopez was then placed under arrest. Sergeant Molina testified he witnessed Detective Davila reading Lopez her rights and Lopez nodding her head when asked if she shot her husband. Sergeant Molina also testified he heard Detective Davila tell Lopez she was going to jail after she admitted shooting her husband.

Lopez then told Detective Davila her husband had beat her, and she agreed to write a list of witnesses who could testify about the abuse. Detective Davila left the room and Sergeant Molina continued to talk with Lopez, who then agreed to give a second statement. Sergeant Molina went over her rights again and she provided a second statement in the same manner as the first. The second statement contains on the face of the document the warnings required by article 38.22. Although Lopez never admitted in her first statement to being involved in her husband’s death, in her second statement she stated she did not remember “how I shot him.” Lopez also claimed in her second statement that her husband had abused her the morning of the shooting and abuse had occurred in the past. She also provided a handwritten list of people who witnessed the abuse.

Detective Davila testified Lopez acknowledged each of her rights when he read them to her. Sergeant Molina testified Lopez understood her rights and that she voluntarily made her second written statement.

Discussion

Motion to Suppress

In separate points of error, Lopez asserts the trial court erred in denying her motion to suppress her second written statement, Detective Davila’s testimony that she nodded her head in response to the question whether she shot her husband, and the handwritten witness list. Lopez argues the admission of this evidence violated the Constitution of the United States and Texas law. In particular, Lopez contends: the second written statement was involuntary because of coercive measures used by the deputies; the “head nod” took place while she was in custody and failed to comply with article 38.22 of the Texas Code of Criminal Procedure; and the witness list was created after she had been formally arrested and did not comply with the warning requirements of article 38.22.

We review the trial court’s ruling on a motion to suppress for abuse of discretion, using a bifurcated standard. State v. Dixon, 206 S.W.3d 587, 590 (Tex.Crim.App.2006). We view the record in the light most favorable to the trial court’s ruling and will reverse only if the ruling is outside the zone of reasonable disagreement. Id. We give almost total deference to the trial court’s findings of historical fact supported by the record and to mixed questions of law and fact that turn on an evaluation of credibility and demeanor. Guzman v. State, 955 S.W.2d 85, 89 (Tex.Crim.App.1997). We review de novo the trial court’s determination of the law and its application of the law to facts that do not turn upon an evaluation of credibility and demeanor. Id. When the trial court has not made a finding on a relevant fact, we imply the finding that supports the trial court’s ruling, so long as it finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex.Crim.App.2006). We will uphold the trial court’s ruling if it is reasonably supported by the record and is correct under any theory of the law applicable to the case. Dixon, 206 S.W.3d at 590.

At the suppression hearing, Sergeant Molina and Detective Davila testified to the facts set out above. Lopez testified at the hearing that she voluntarily went to the sheriffs office to provide a statement and did not believe she was under arrest. She also testified she agreed to undergo the GSR test. However, she contradicted the deputies’ testimony, stating Detective Davila told her she would be placed under arrest as he read her the Miranda rights. She also testified she thought she was under arrest when her rights were read. Lopez denied making any indication that she shot her husband.

After the hearing, the trial court found: (1) the testimony of the deputies was credible; (2) Lopez voluntarily went to the sheriffs office; (3) after giving the first statement, Lopez became a suspect and her Miranda rights were read to her; (4) Lopez’s second written statement was voluntarily made and complied with the requirements of article 38.22; (5) the list of witnesses was obtained “in the due course of taking the [second] statement;” (6) there was substantial compliance with article 38.22 concerning the list of witnesses; and (7) the “head nod” was admissible. Neither party requested any additional findings of fact or conclusions of law. See Tex.Code Crim. Proc. art. 38.22 § 6 (Vernon 2007)(trial court must make findings of fact and conclusions of law concerning admissibility of defendant’s statements when questions of voluntariness are raised).

Head Nod

Lopez contends the trial court erred by refusing to suppress evidence that she nodded her head affirmatively after Detective Davila stated, “You shot him, right?” Lopez claims the head nod occurred while she was in custody and did not comply with the recording requirements of article 38.22, section 3, of the Code of Criminal Procedure. The requirements of article 38.22, section 3 are triggered only by custodial interrogations. See Nguyen v. State, 292 S.W.3d 671, 676-77 (Tex.Crim.App.2009). If Lopez was not in custody at the time of the head nod, then article 38.22 does not apply. Herrera v. State, 241 S.W.3d 620, 525 (Tex.Crim.App.2007).

Custody for purposes of article 38.22 occurs in one of two ways: (1) when an individual is formally arrested, or (2) when an individual’s freedom of movement has been restrained to the degree associated with a formal arrest. Nguyen, 292 S.W.3d at 677; “[B]eing the ‘focus’ of an investigation does not necessarily render a person ‘in custody5 for purposes of receiving Miranda warnings or those required under article 38.22 of the Code of Criminal Procedure.” Gardner v. State, 306 S.W.3d 274, 293 (Tex.Crim.App.2009). A person is in custody only if, under the circumstances, “a reasonable person would believe that his freedom of movement was restrained to the degree associated with a formal arrest.” Herrera, 241 S.W.3d at 525.

If Lopez was not in custody, then evidence of her affirmative head nod was admissible. The trial court did not make an explicit finding that Lopez was not in custody at the time of the affirmative head nod; however, the record supports such an implicit finding. Both Sergeant Molina and Detective Davila testified the affirmative head nod was in response to the question asked by Detective Davila. Although the question took place after Lopez was read her Miranda rights, both deputies testified Lopez was still free to leave because her status did not change until after she nodded her head, admitting she shot her husband. The court found the deputies’ testimony credible, and Lopez admitted she voluntarily went to the sheriff’s office. We defer to the trial court on the credibility and demeanor of the witnesses, and hold the evidence supports the trial court’s implicit determination that Lopez was not in custody when she nodded her head. Even though Lopez testified she did not feel free to leave once the Miranda rights were administered, the trial court apparently did not credit this testimony in the face of the deputies’ testimony concerning the circumstances surrounding the statement. The trial court did not abuse its discretion in admitting testimony of the affirmative head nod.

Second Written Statement

Lopez contends her second written statement should have been suppressed because it was involuntary and resulted from “overbearing” and coercive police actions. To support her contentions, Lopez points to her testimony during the suppression hearing that: (1) Sergeant Molina promised to let her see her son after she gave the second statement; (2) Sergeant Molina told her she needed to tell the truth or she would not see her children again; and (3) the deputies used psychological ploys involving her claim of being an abused spouse to overcome her will. However, Sergeant Molina denied promising Lopez she would see her son if she signed the statement. He testified about the circumstances surrounding the taking of the statement, indicating it was not done in a coercive manner. Deferring to the trial judge’s credibility determinations supported by the record, we hold the trial court did not abuse its discretion in finding the statement was voluntary.

Witness List

Lopez argues the handwritten witness list was a custodial statement that did not comply with article 38.22, section 2, of the Texas Code of Criminal Procedure because no warnings appeared on the face of the document. The State apparently concedes Lopez wrote the witness list while in custody, but argues the list was admissible because it substantially complied with requirements of article 38.22, section 2. Written statements that do not contain the exact warnings required by article 38.22 may be admissible if the State can demonstrate substantial compliance with article 38.22. See Cockrell v. State, 933 S.W.2d 73, 91 (Tex.Crim.App.1996), cert. denied, 520 U.S. 1173, 117 S.Ct. 1442, 137 L.Ed.2d 548 (1997).

The State argues it substantially complied with article 38.22 because warnings similar to those required were orally given by the deputies, the warnings appeared on the second written statement in which Lopez confesses to the murder, and Lopez initialed and signed a rights card prior to writing the witness list. However, the State does not cite a case, and our research has failed to disclose any, in which oral warnings or warnings on another document have been held to constitute substantial compliance. Here, none of the warnings required by article 38.22 appear on the face of the document. We hold the State did not substantially comply with article 38.22, and the trial court erred in admitting the statement. See Cockrell, 933 S.W.2d at 91; see also Nonn v. State, 117 S.W.3d 874, 879-81 (Tex.Crim.App.2003) (statement that omitted one of the required warnings held not to be in substantial compliance with article 38.22).

Having found error, we must determine whether the error requires reversal. The admission of the witness list in violation of article 38.22 is a non-constitutional error and requires reversal only if it affected the defendant’s substantial right. Woods v. State, 152 S.W.3d 105, 118 (Tex.Crim.App.2004), cert. denied, 544 U.S. 1050, 125 S.Ct. 2295, 161 L.Ed.2d 1092 (2005). A defendant’s substantial rights are affected when the error had a substantial and injurious affect or influence on the jury’s verdict. Id. If the error had no or only a slight influence on the verdict, the error is harmless. Johnson v. State, 967 S.W.2d 410, 417 (Tex.Crim.App.1998). In making this determination, we consider the entire record, including testimony, physical evidence, jury instructions, the State’s theories and any defensive theories, closing arguments, and voir dire if applicable. Bagheri v. State, 119 S.W.3d 755, 763 (Tex.Crim.App.2003).

Neither the witness list nor testimony about the list played a major role in the State’s case. The only trial testimony regarding the list was from Detective Davila, who told the jury he contacted each person on the list and was unable to confirm Lopez’s claims that she was abused by her husband. Although the State referred to the list twice during closing argument, the references were merely to acknowledge the existence of the list and to respond to the defense’s argument that the sheriffs office failed to conduct a complete investigation. The jury heard testimony regarding Lopez’s confession, her admissions to the deputies, and the results of the gun residue tests indicating she had recently fired or was in close proximity to a fired weapon. The jury also heard evidence the killing took place in a manner that indicated the shooter had some rage or anger against the victim. And the State presented evidence of a motive — Lopez was angry at her husband because he had an affair with another woman. In light of the evidence against Lopez, we conclude admission of the witness list did not affect her substantial rights.

Accordingly, Lopez’s points of error concerning the admission of her statements are overruled.

Evidentiary Issues

We review a trial court’s decision to admit or exclude evidence under an abuse of discretion standard. McDonald v. State, 179 S.W.3d 571, 576 (Tex.Crim.App.2005). The trial court’s ruling will not be reversed on appeal absent a clear abuse of discretion. Id. An abuse of discretion occurs when “its decision is so clearly wrong as to lie outside the zone within which reasonable persons might disagree.” Id. In rare circumstances, erroneous evi-dentiary rulings may violate constitutional protections of due process. Potier v. State, 68 S.W.3d 657, 660-65 (Tex.Crim.App.2002).

Alternative Perpetrator

Lopez argues the trial court violated her constitutional right to present a defense when it excluded evidence that Lopez contends demonstrates the victim was killed by another person. The evidence at issue included: hearsay testimony the victim may have had “a lot of’ enemies; the victim dealt drugs; the victim was seen with a gun months before the killing; and the victim may have been affiliated with a gang that had experienced internal strife that led to the killing of at least two members of the gang. After conducting a hearing outside the presence of the jury, the trial court concluded the evidence was “largely irrelevant” and the probative value of the evidence was substantially outweighed by its prejudicial effect, and ruled the evidence inadmissible. See Tex.R. of Evid. 401 (defining relevant evidence), 402 (non-relevant evidence is inadmissible), & 403 (relevant evidence may be excluded if probative value is substantially outweighed by its prejudicial effect).

When a defendant seeks to introduce evidence of an “alternative perpetrator,” he must establish a sufficient nexus between that person and the crime. Wiley v. State, 74 S.W.3d 399, 406 (Tex.Crim.App.2002), cert. denied, 537 U.S. 949, 123 S.Ct. 415, 154 L.Ed.2d 294 (2002).

In weighing probative value against Rule 403 counterfactors, courts must be sensitive to the special problems presented by “alternative perpetrator” evidence. Although a defendant obviously has a right to attempt to establish his innocence by showing that someone else committed the crime, he still must show that his proffered evidence regarding the alleged alternative perpetrator is sufficient, on its own or in combination with other evidence in the record, to show a nexus between the crime charged and the alleged “alternative perpetrator.”

Id. It is not sufficient for a defendant to proffer “unsupported speculation” that another person may have committed the crime. Id. at 407 n. 23 (citing United States v. McVeigh, 153 F.3d 1166, 1191 (10th Cir.1998), cert. denied, 526 U.S. 1007, 119 S.Ct. 1148, 143 L.Ed.2d 215 (1999)).

Lopez did not provide a sufficient nexus between some alternative perpetrator and the murder of the victim. None of the evidence pointed to a particular individual as responsible for the killing. The proffered evidence amounted to no more than mere speculation that another person may have committed the crime. We hold the trial court did not err in excluding the evidence.

Text and Voice Messages

Lopez asserts the trial court erred in allowing the State to place into evidence a recording of two voice messages left by Lopez on a phone belonging to Nakita Guerrero and a transcript of several text messages that were exchanged between Lopez and Guerrero the day the victim was killed. The content of the messages centered on Guerrero’s sexual relationship with the victim. Lopez contends that any probative value of the evidence was substantially outweighed by the danger of unfair prejudice because the evidence contained vulgar and profane language used by her and demonstrated her anger toward Guerrero, the admitted paramour of the victim. The State responds the messages were admissible because they supplied evidence of motive — Lopez was angry about her husband’s affair with Guerrero and that anger was present on the day of the killing.

We hold the trial court did not abuse its discretion in admitting the evidence. The messages were clearly relevant to motive and the probative value was not substantially outweighed by any prejudicial effect.

Comment on Defendant’s Failure to Testify

Lopez next argues the trial court erred in denying her a mistrial when the State commented during closing argument on her failure to testify. The comment was made when the State was discussing its failure to produce the gun at trial. The prosecutor initially argued Lopez had ample opportunity to dispose of the gun and continued by stating:

Why don’t we have it? I wish we could bring it here for you. But, unfortunately, Frances Lopez didn’t tell anybody where she put the gun, so we don’t have it.

Lopez objected that the argument was a comment on her failure to testify. The court sustained the objection, instructed the jury to disregard the statement, but denied Lopez’s request for a mistrial.

The denial of a mistrial is reviewed under an abuse of discretion standard. Wead v. State, 129 S.W.3d 126, 129 (Tex.Crim.App.2004). The trial court’s ruling will be upheld on appeal so long as it is within the zone of reasonable disagreement. Id. Prosecutorial argument is considered a comment on a defendant’s failure to testify when the language used was “manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify.” Busby v. State, 253 S.W.3d 661, 666 (Tex.Crim.App.), cert. denied, — U.S. —, 129 S.Ct. 625, 172 L.Ed.2d 617 (2008) (quoting Cruz v. State, 225 S.W.3d 546, 548 (Tex.Crim.App.2007)). “It is not sufficient that the language used might impliedly or indirectly be so construed.” Busby, 253 S.W.3d at 666. The full context of the prosecutor’s statement must be considered in determining whether a jury would “necessarily and naturally” interpret the comment as a reference to the defendant’s failure to testify. Cruz, 225 S.W.3d at 549.

The State contends the comment was a reference to Lopez’s confessions rather than a comment on her failure to testify. While the comment was not an explicit reference to her statements, based on the context of the argument, we cannot say it was “manifestly intended or was of such a character that the jury would necessarily and naturally take it as a comment on the defendant’s failure to testify.” See Busby, 253 S.W.3d at 666; Cruz, 225 S.W.3d at 549. Accordingly, the trial court did not abuse its discretion in denying the mistrial.

Conclusion

The judgment of the trial court is affirmed.

      . This first statement did not include the warnings required by article 38.22 of the Texas Code of Criminal Procedure. See Tex.Code Crim.Proc. Ann. art. 38.22 (Vernon 2005). Lopez does not challenge admissibility of the first statement.


text:
    Robert Wade GOKEY, Appellant, v. The STATE of Texas, Appellee.
    Nos. 04-08-00214-CR, 04-08-00215-CR.
    Court of Appeals of Texas, San Antonio.
    March 3, 2010.
    Discretionary Review Dismissed Aug. 25, 2010.

      Joseph A. Esparza, Law Office of Michael Gross, San Antonio, TX, for appellant.
    J. Barrett Shipp, Assistant Criminal District Attorney, San Antonio, TX, for appellee.
    Sitting: CATHERINE STONE, Chief Justice, PHYLIS J. SPEEDLIN, Justice, STEVEN C. HILBIG, Justice.
   OPINION

Opinion by:

STEVEN C. HILBIG, Justice.

Our opinion and judgment of December 23, 2009 are withdrawn and the following are substituted. See Tex.R.App. P. 50. Robert Wade Gokey was found guilty by a jury of two counts of aggravated assault on a public servant and one count of evading arrest. Punishment was tried to the court. The court found the habitual offender allegations in the indictments to be true and sentenced Gokey to concurrent thirty year sentences. On appeal, Gokey contends the evidence is legally and factually insufficient to support a finding that he knew his victims were peace officers, that he caused serious bodily injury, or to support the jury’s implicit rejection of his defense of involuntary act or conduct. Gokey also contends the evidence is legally insufficient to support the trial court’s finding he had been convicted of one of the offenses alleged for enhancement. We affirm the judgment of the trial court.

BACKGROUND

On November 8, 2006, several deputies from the Bexar County Sheriffs office were preparing to execute a search warrant on the east side of Bexar County. Part of the preparations included establishing surveillance on the house intended to be searched. During the surveillance, the deputies noticed a person, later identified as Gokey, leave the house and enter a car. According to Deputy Richard Esco-bedo, Gokey paused before entering the car and appeared to place something under the seat. Deputy Anthony Alvarado, who was leading the search warrant team, followed Gokey in his unmarked vehicle.

Deputy Armando Lopez, who was in full uniform and driving a marked patrol vehicle, participated in a rolling surveillance of Gokey. Deputy Lopez testified Gokey did not use his turn indicator to signal before making a turn. Deputy Lopez turned on his emergency lights and Gokey pulled his car to the side of the road. Deputy Lopez stopped his vehicle behind Gokey’s car and approached the vehicle. Two unmarked sheriffs’ vehicles with deputies dressed in plain clothes also parked near Gokey’s car. Before Deputy Lopez reached Gokey’s car, Gokey backed the car, jumped a curb, and drove around the other deputies’ vehicles. Deputy Lopez got back into his vehicle, activated his siren, and began chasing Go-key. The two unmarked vehicles also pursued Gokey. The chase continued at a high rate of speed and lasted for several miles until Gokey drove into a parking lot. Gokey jumped from his car while it was still moving and attempted to flee from the deputies.

Deputy Lopez testified he was the first to reach Gokey and that he grabbed Gokey by the hand. Gokey used his free hand to swing at Deputy Lopez’s hand. Deputy Lopez felt a sharp pain on his left hand and released his grip on Gokey. Deputy Lopez noticed that his hand had been cut two-to-three inches deep and he could see bone exposed by the cut. Deputy Alvarado, who had also arrived at the parking lot, testified he was not in uniform, but had his badge either clipped to his holster or on a chain around his neck. He. testified he saw Deputy Lopez grab Gokey. As Deputy Alvarado approached the men, he noticed Deputy Lopez had lost his hold on Gokey and was acting as if something was wrong. Deputy Alvarado told the jury he saw Gokey run into another deputy and push her away. Drawing his weapon, Deputy Alvarado continued to chase Gokey, screamed at him to stop, and identified himself by yelling “Sheriffs Department.” As Deputy Alvarado got closer, Gokey reached back and swung his arm at Deputy Alvarado in a slashing motion. Deputy Alvarado testified he raised his arm to block the blow and felt a sharp scratch on his arm. The deputy later determined that Gokey had cut him on the arm. Deputy Alvarado managed to grab Gokey by the shoulder and throw him to the ground. While securing Gokey, Deputy Alvarado realized Gokey had a small red knife or box cutter in his hand. Gokey continued to swing the knife at Deputy Alvarado and the other deputies who arrived to help Deputy Alvarado subdue Gokey. Deputy Escobedo also testified he saw Gokey cut Deputy Lopez and that Gokey and the uniformed Deputy Lopez were facing each other when Gokey sliced the deputy’s hand.

STANDARD OP REVIEW

We review a challenge to the legal sufficiency of the evidence by looking at all of the evidence in the light most favorable to the verdict to determine whether any rational trier of fact could have found the essential elements of the offense beyond a reasonable doubt. Prible v. State, 175 S.W.3d 724, 729-30 (Tex.Crim.App.), cert. denied, 546 U.S. 962, 126 S.Ct. 481, 163 L.Ed.2d 367 (2005). We resolve any inconsistencies in the testimony in favor of the verdict. Curry v. State, 30 S.W.3d 394, 406 (Tex.Crim.App.2000). In reviewing the factual sufficiency of the evidence, we look at the evidence in a neutral light, and ask whether the evidence supporting the verdict is so weak or so against the great weight and preponderance of the evidence as to render the verdict manifestly unjust. Grotti v. State, 273 S.W.3d 273, 280 (Tex.Crim.App.2008).

Discussion

Aggravated Assault on a Peace Officer

Gokey was charged with aggravated assault in a single indictment that contained two counts. Count one named Deputy Lopez as the victim and count two named Deputy Alvarado as the victim. Each count contained two paragraphs, with the first paragraph alleging Gokey used a deadly weapon — a knife — to cause bodily injury to the victim. The second paragraph alleged Gokey caused serious bodily injury to the victim. Each paragraph also alleged Gokey knew the victim was a public servant who was lawfully discharging an official duty when he was assaulted. This allegation raised the aggravated assault charge, generally a second degree felony, to a first degree felony. Tex. Penal Code Ann. § 22.01 (b)(2)(Vernon 2007). Section 22.02 of the Texas Penal Code provides that a defendant “is presumed to have known the person assaulted was a public servant ... if the person was wearing a distinctive uniform or badge indicating the person’s employment as a public servant....” Id. § 22.02(c). The jury was instructed in accordance with this presumption.

Gokey argues the evidence was legally and factually insufficient to support the convictions for aggravated assault because he did not know his victims were peace officers. Deputy Lopez testified that on the day of the offense, he was in full uniform and driving a marked patrol vehicle. Deputy Alvarado testified his badge was displayed during the foot chase, either on his holster or on a chain around his neck. The section 22.02(c) presumption therefore applies. See id. The evidence on this element of aggravated assault is sufficient to support the convictions.

Moreover, the evidence is sufficient even if the jury did not rely on the presumption. Deputy Alvarado was not cut until Gokey ran from deputies after the car chase had ended. Before the chase, Gokey stopped his car in response to flashing emergency lights on Deputy Lopez’s marked police vehicle. Two other deputies in unmarked sheriffs’ vehicles who were involved in the rolling surveillance parked near Cokey’s car. Gokey maneuvered around the unmarked vehicles and fled. Deputy Lopez and the two other deputies returned to their vehicles and began chasing Gokey. During the chase, Deputy Lopez used his siren and loudspeaker in an attempt to have Gokey stop. After Gokey pulled into the parking lot and jumped out of his car, the first person he encountered was the uniformed Deputy Lopez, who attempted to detain Gokey. Deputy Lopez testified his vehicle was immediately behind Gokey’s vehicle as Gokey attempted to flee. Deputy Lopez also told the jury Gokey faced him as Gokey exited his vehicle. Deputy Lopez quickly reached Gokey and was cut when he attempted to stop Gokey. Gokey pushed another deputy in plain clothes as he tried to run away. Deputy Alvarado caught Gokey and was cut by him.

Gokey contends that although there is evidence he faced Deputy Lopez as Gokey exited his vehicle, there is no evidence Gokey actually saw Deputy Lopez. This argument fails to acknowledge that the jury is permitted to make reasonable inferences from the evidence. Hooper v. State, 214 S.W.3d 9, 14-15 (Tex.Crim.App.2007). The jury was permitted to infer that if Gokey and Deputy Lopez faced each other just before Gokey cut the deputy, Gokey was aware that Deputy Lopez wore a distinctive uniform indicating he was a public servant.

A rational jury could have found from this evidence that Gokey knew he was being pursued by law enforcement officers and that the people he cut were officers who were attempting to subdue him. We hold the evidence is both legally and factually sufficient to establish Gokey knew Deputies Lopez and Alvarado were public servants.

Lastly, Gokey asserts the evidence is legally and factually insufficient to show the deputies suffered serious bodily injury as alleged in the second paragraph of each count. The charge of the court instructed the jury it could return a finding of guilty if the jury found beyond a reasonable doubt Gokey used a deadly weapon and caused bodily injury to each victim, or if it found Gokey caused serious bodily injury to the victims. The jury was also instructed to answer a special issue as to whether Gokey used or exhibited a deadly weapon during the commission of the aggravated assaults or in the immediate flight therefrom. The jury returned a general verdict of guilty on each count and an affirmative finding that Gokey used or exhibited a deadly weapon. Gokey does not attack the sufficiency of the evidence to support the jury’s finding that he used a deadly weapon.

Where alternate theories of committing the same offense are submitted to the jury in the disjunctive, it is proper for the jury to return a general verdict if the evidence is sufficient to support a finding under any theory submitted. Sorto v. State, 173 S.W.3d 469, 472 (Tex.Crim.App.2005) cert. denied, 548 U.S. 926, 126 S.Ct. 2982, 165 L.Ed.2d 989 (2006); Kitchens v. State, 823 S.W.2d 256, 258 (Tex.Crim.App.1991). Allegations that a defendant, with the appropriate mens rea either caused bodily injury and used a deadly weapon or caused serious bodily injury state two different manners in which the crime of aggravated assault may be committed. Landrian v. State, 268 S.W.3d 532, 538-39 (Tex.Crim.App.2008). We decline to conduct a review of the sufficiency of the evidence as to the existence of serious bodily injury because Gokey does not claim the evidence is insufficient to support his conviction under the bodily injury/deadly weapon theory. See Gonzalez Soto v. State, 267 S.W.3d 327, 333 (Tex.App.-Corpus Christi-Edinburg 2008, no pet.) (appellate court declined to render judgment of acquittal after State conceded evidence was legally insufficient to support one of three theories submitted to jury because jury returned general verdict of guilty and defendant did not challenge sufficiency of evidence as to remaining two theories); Randall v. State, 232 S.W.3d 285, 288 (Tex.App.-Beaumont 2007, pet. ref'd.)(overrul-ing defendant’s claim of legal insufficiency because defendant did not challenge all theories submitted to jury); Henderson v. State, 77 S.W.3d 321, 327 (Tex.App.-Fort Worth 2002, no pet.) (same). We therefore overrule Cokey’s points of error concerning the legal and factual sufficiency of the evidence.

Involuntary Act or Conduct Defense

In his next two points of error, Gokey argues the evidence is legally and factually insufficient to support the jury’s implicit rejection of his involuntary act or conduct defense. At Cokey’s request, the jury was instructed to find him not guilty if the cutting of each victim was the result of an involuntary act or conduct while Go-key was attempting to cut himself. Gokey contends he was attempting to commit suicide when the deputies were cut and the cutting was “involuntary.”

A person commits an offense only if he voluntarily engages in the conduct proscribed by law. Tex. Penal Code Ann. § 6.01(a)(Vernon 2007). Involuntary conduct is a defense to prosecution. Trujillo v. State, 227 S.W.3d 164, 169 (Tex.App.-Houston [1st Dist.] 2006, pet. ref'd.). “Voluntariness,” as used in section 6.01(a):

refers only to one’s own physical body movements. If those physical movements are the nonvolitional result of someone else’s act, are set in motion by some independent non-human force, are caused by a physical reflex or convulsion, or are the product of unconsciousness, hypnosis or other nonvolitional impetus, that movement is not voluntary.

Rogers v. State, 105 S.W.3d 630, 638-639 (Tex.Crim.App.2003)(footnotes omitted). “ ‘[C]onduct [is not] rendered involuntary merely because an accused does not intend the result of his conduct.’ ” Id. at 638 (quoting Adanandus v. State, 866 S.W.2d 210, 230 (Tex.Crim.App.1993) cert. denied, 510 U.S. 1215, 114 S.Ct. 1338, 127 L.Ed.2d 686 (1994)).

When a defendant challenges the legal sufficiency of evidence to support the jury’s rejection of a defense, the standard of review is altered slightly. In addition to deciding whether a rational jury would have found the essential elements of aggravated assault against a peace officer beyond a reasonable doubt, we must also decide whether the same jury would have found against Gokey on the involuntary act or conduct issue beyond a reasonable doubt. See Saxton v. State, 804 S.W.2d 910, 914 (Tex.Crim.App.1991). When reviewing the factual sufficiency of the rejection of a defense, we view “all of the evidence in a neutral light and ask[ ] whether the State’s evidence taken alone is too weak to support the finding and whether the proof of guilt, although adequate if taken alone, is against the great weight and preponderance of the evidence.” Zuliani v. State, 97 S.W.3d 589, 595 (Tex.Crim.App.2003).

Gokey argues he was attempting suicide when the officers “got in the way” and he “involuntarily” cut them. Although several witnesses testified Gokey used the knife to cut his neck as the officers tried to subdue him, Gokey has not identified any evidence that suggests his actions were the result of some reflex, convulsion, unconsciousness, hypnosis, or other nonvolitional impetus. Rather, his argument is that the result of his actions—the cutting of each officer—was unintended. This argument is akin to the “accident” defense no longer available under Texas law. See Williams v. State, 630 S.W.2d 640, 644 (Tex.Crim.App.1982)(noting that under former penal code, “accident” described multiple defenses, including involuntary conduct and unintended result). “Accident,” in the sense of an unintended or unexpected result of conduct, no longer supports the defense of involuntariness. See Rogers, 105 S.W.3d at 638-39. Rather, the evidence must show “one’s own physical body movements” were not voluntary. Id. at 638.

There is no evidence Gokey did not voluntarily swing the knife. Deputy Alvarado testified Gokey was swinging the knife at the deputies in an attempt to keep them away from him. Deputy Escobedo testified Gokey “purposefully” swung the knife. There is no evidence indicating Gokey’s actions were anything but voluntary. The evidence is therefore legally and factually sufficient to support the jury’s implicit rejection of Gokey’s involuntary act or conduct defense.

Enhancement Allegations

In his final two points of error, Gokey asserts the evidence is legally insufficient to support the trial court’s finding of true to the enhancement allegations because there is a material variance between the allegations and the proof. The State agrees the enhancement allegations recite a conviction in Chesterfield County, Virginia and the proof establishes a conviction in the Circuit Court in the City of Colonial Heights, Virginia. We must therefore decide whether variance between what was alleged and what was proved is material. See Human v. State, 749 S.W.2d 832, 836 (Tex.Crim.App.1988) (holding variance between enhancement allegation and proof renders evidence legally insufficient only if variance is material).

Prior convictions alleged for enhancement are not required to be pleaded with the same particularity as the primary offense. Freda v. State, 704 S.W.2d 41, 42 (Tex.Crim.App.1986). A variance between an allegation in an enhancement paragraph and the proof introduced at trial is material only if it would mislead a defendant to his prejudice. Id. at 42. Unless Gokey was prejudiced by the discrepancy in allegations and the proof, the variance does not require reversal. See id. at 42-43 (variance in name of the prior offense alleged and name of prior offense proved not material where date, cause number, and court were correctly alleged); Rooks v. State, 576 S.W.2d 615, 617 (Tex.Crim.App.1978) (where indictment alleged prior conviction in “Criminal District Court of Harris County” and proof showed conviction in the “184th District Court of Harris County,” variance held not material).

The indictments allege that on March 26, 1979, in Cause No. 202, in Chesterfield County, Virginia, Gokey was convicted of the felony of statutory burglary. The proof was that on March 26,1979, in Cause No. 202, in the Circuit Court of the City of Colonial Heights, Virginia, Gokey was convicted of the felony of statutory burglary. The only statement in Gokey’s brief regarding prejudice is that “listing the wrong place of conviction would prevent a defendant from accessing the record.” However, Gokey has not asserted he was not given sufficient notice of what the State intended to prove, that he was surprised, that he was unable to access the record, or that he was misled to his prejudice by the discrepancy between the State’s allegations and its proof. Because Gokey has not shown he was prejudiced, the variance was not material and the evidence is legally sufficient to support the judgment.

The judgments of the trial court are affirmed.


author: FELIPE REYNA, Justice.

text:
    Ismael Ruben LOPEZ, Appellant, v. The STATE of Texas, Appellee.
    No. 10-08-00400-CR.
    Court of Appeals of Texas, Waco.
    March 10, 2010.

      John A. Kuchera, Waco, for Appellant.
    John W. Segrest, McLennan County Dist. Atty., Waco, for Appellee.
    Before Chief Justice GRAY, Justice REYNA, and Justice DAVIS.

       (Chief Justice Gray concurs in the judgment to the extent that it affirms the trial court’s judgment. A separate opinion will not issue. He notes, however, that the process leading to the opinion on rehearing and the inclusion therein of the discussion of supplementing the record was the result of the Court's failure to request supplemental briefing on an issue identified, briefed and decided by the Court. Only after the opinion issued did the parties learn of the need to address the issue.)

   OPINION ON REHEARING

FELIPE REYNA, Justice.

A jury convicted Ismael Ruben Lopez of aggravated assault by using a deadly weapon and causing serious bodily injury to a member of his family. Lopez pleaded “true” to an enhancement allegation, and the jury assessed his punishment at thirty-five years’ imprisonment. On rehearing, we will affirm the judgment.

On original submission, the Court, with Chief Justice Gray dissenting, reversed the judgment and remanded this cause for further proceedings because the record did not reflect that the indictment had been amended and the guilt-innocence charge submitted a different offense than alleged in the indictment. Within two days, the Court received supplemental records from the district clerk and the court reporter which reflect that the indictment was properly amended. The State filed a motion for rehearing several days later urging us to reconsider the issues presented in light of these supplemental records.

Supplementation of Record

For his part, Lopez contends that there is no valid basis to permit supplementation of the record at this late date. We disagree. Lopez specifically requested that records relating to the amendment of the indictment be included in the appellate record but was informed that there were no such records aside from the motion to amend. The parties briefed the case as if the indictment had not been properly amended, and our original opinion was based on this understanding, which has since been proved incorrect.

The rules governing supplementation of the appellate record with omitted matters are identical for civil and criminal appeals. See Tex.R.App. P. 34.5(c)(1), (3), 34.6(d). We have recently addressed the appropriate standard for supplementation of the record after issuance of the appellate court’s decision in a civil appeal. See In re Cervantes, 300 S.W.3d 865, 870-72 (Tex.App.-Waco 2009, orig. proceeding) (op. on reh’g).

[Rules 34.5(c) and 34.6(d)] grant this court wide discretion to supplement the transcript or statement of facts so as to include omitted matter. However, such discretion should not be exercised, in the absence of some unusual circumstance, so as to permit new material to be filed after the appellate court has written its opinion and rendered its judgment.

Id. at 871 (quoting K & S Interests, Inc. v. Tex. Am. Bank/Dallas, 749 S.W.2d 887, 891 (Tex.App.-Dallas 1988, writ denied)).

The Court of Criminal Appeals has required supplementation under similar circumstances where both parties mistakenly believed that a videotape, which was the subject of two of the appellant’s points of error, was on file with the court of appeals, but the parties did not learn until after the court of appeals issued its opinion that the videotape had never been filed. See Zule v. State, 820 S.W.2d 801, 801-02 (Tex.Crim.App.1991).

The facts of this case present the requisite “unusual circumstances.” Accordingly, we hold that the supplemental records are properly before us, and we will reconsider the merits of the three issues presented in Lopez’s brief.

Degree of Punishment

Lopez contends in his second issue that the court erred by charging the jury on the punishment for a first degree offense because the indictment alleges only a second degree offense and was never amended. However, the supplemental records affirmatively show that the indictment was properly amended to allege a first degree offense by interlineation of the original indictment. See Riney v. State, 28 S.W.3d 561, 565 (Tex.Crim.App.2000); Barfield v. State, 202 S.W.3d 912, 919 (Tex.App.-Texarkana 2006, pet. ref'd). Thus, we overrule Lopez’s second issue.

Motion for Mistrial

Lopez contends in his first issue that the court erred by overruling his motion for mistrial after his mother provided non-responsive testimony that he previously “went to TYC.”

A mistrial is required because of improper testimony only when the evidence is “clearly prejudicial to the defendant and is of such character as to suggest the impossibility of withdrawing the impression produced on the minds of the jurors.” Russeau v. State, 171 S.W.3d 871, 885 (Tex.Crim.App.2005). Otherwise, a prompt instruction to disregard generally cures the prejudicial effect of improper testimony, even that regarding extraneous offenses. Ovalle v. State, 13 S.W.3d 774, 783 (Tex.Crim.App.2000); Hackett v. State, 160 S.W.3d 588, 592 (Tex.App.-Waco 2005, pet. ref'd); accord Marshall v. State, 210 S.W.3d 618, 628-29 (Tex.Crim.App.2006).

Here, the witness’s testimony referred to Lopez’s prior incarceration at TYC. The trial court overruled Lopez’s objection and denied his motion for mistrial but instructed the jury to disregard the testimony. The parties dispute whether the jurors knew what TYC was. Regardless, Texas courts have consistently held that the prejudicial effect of testimony referring to a prior incarceration can be cured by an instruction to disregard. See, e.g., Kemp v. State, 846 S.W.2d 289, 308 (Tex.Crim.App.1992); Jackson v. State, 287 S.W.3d 346, 354 (Tex.App.-Houston [14th Dist.] 2009, no pet.). Thus, we overrule Lopez’s first issue.

Parole Instruction

Lopez contends in his third issue that the court submitted an erroneous parole law instruction in the punishment charge because the charge instructed the jury that Lopez’s good conduct time would be included in calculating when he would become eligible for parole.

The State agrees that this instruction was erroneous. See Tex.Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon Supp. 2009) (when there is an affirmative deadly-weapon finding, the statutory parole law instruction informs the jury that parole eligibility will be calculated “without consideration of any good conduct time”). However, Lopez did not object to this erroneous instruction. Thus, he can obtain reversal only on a showing of egregious harm. Trejo v. State, 280 S.W.3d 258, 261 (Tex.Crim.App.2009) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985) (op. on reh’g)).

In Hooper v. State, 255 S.W.3d 262 (Tex.App.-Waco 2008, pet. ref'd), this Court addressed the issue of egregious harm in the context of an erroneous parole law instruction. We identified four relevant factors including: (1) the presumption that the jury followed the court’s instructions; (2) whether there was a jury note regarding parole or good-conduct time; (3) whether the State emphasized the possibility of parole in argument; and (4) the severity of the defendant’s sentence. Id. at 271-72.

Here, there was no jury note regarding parole or good-conduct time. The State did not mention parole or good-conduct time in its closing argument. The jury assessed Lopez’s punishment at thirty-five years which was not extreme considering the facts of the case and his prior criminal history. And there is nothing in the record to overcome the presumption that the jury followed the court’s instructions “not to consider the extent to which good conduct time may be awarded or forfeited by this particular defendant” and “not to consider the manner in which the parole law may be applied to this particular defendant.” See Tex.Code Crim. Proc. Ann. art. 37.07, § 4(a). Accordingly, we cannot say Lopez suffered egregious harm from the erroneous parole law instruction. See Stewart v. State, 293 S.W.3d 853, 856-62 (Tex.App.-Texarkana 2009, pet. ref'd); Hooper, 255 S.W.3d at 272-73. We overrule Lopez’s third issue.

The State’s motion for rehearing is granted. The opinion and judgment of this Court dated January 6, 2010, are withdrawn, and the opinion and judgment we issue today are substituted therefor. The trial court’s judgment is affirmed.

Chief Justice GRAY concurring with note.

      . Lopez questions the manner in which the clerk’s and reporter’s records have been supplemented, noting that the State did not file a motion requesting supplementation and there is no letter from either party or this Court directing supplementation of these records. See Tex.R.App. P. 34.5(c)(1), 34.6(d). The supplemental records are in proper form. We do not consider the impetus for their preparation to be a matter of concern.

      . We applied this standard in the context of a mandamus proceeding. See In re Cervantes, 300 S.W.3d 865, 870 (Tex.App.-Waco 2009, orig. proceeding) (op. on reh'g).