Opinion
No. 06-16-00057-CR
02-27-2017
ANDRE MCGILL JACKSON, JR., Appellant v. THE STATE OF TEXAS, Appellee
On Appeal from the 18th District Court Johnson County, Texas
Trial Court No. F49211 Before Morriss, C.J., Moseley and Burgess, JJ.
MEMORANDUM OPINION
When Andre McGill Jackson, Jr. fled afoot following a bank robbery, Detectives David Feucht and Nicholas Grace cut off his escape in the unmarked white Dodge Ram pickup truck in which they were riding. After the vehicle came to a stop blocking Jackson's intended escape route, Feucht exited the vehicle and Jackson fired one shot from his .357 pistol, the bullet from this one shot striking both Feucht and Grace. As a result, Jackson was convicted by a Johnson County jury of two counts of aggravated assault on a public servant and was assessed seventy-five years' confinement on each count.
Originally appealed to the Tenth Court of Appeals, this case was transferred to this Court by the Texas Supreme Court pursuant to its docket equalization efforts. See TEX. GOV'T CODE ANN. § 73.001 (West 2013). We are unaware of any conflict between precedent of the Tenth Court of Appeals and that of this Court on any relevant issue. See TEX. R. APP. P. 41.3.
See TEX. PENAL CODE ANN. § 22.02(a)(2), (b)(2)(B) (West 2011).
On appeal, Jackson argues (1) that the evidence was insufficient to support his conviction for the aggravated assault on a public servant of Feucht under count one, and of Grace under count two, of the indictment and (2) that the trial court erred in failing to limit the definitions of "intentionally," "knowingly," and "recklessly" in both counts. We find (1) that the evidence was sufficient to support Jackson's conviction for aggravated assault on a public servant under counts one and two and (2) that any error in the jury charge was harmless. Therefore, we will affirm the trial court's judgment of conviction for aggravated assault on a public servant under counts one and two.
I. Sufficient Evidence Supports the Trial Court's Findings
A. Standard of Review
In evaluating legal sufficiency, we review all the evidence in the light most favorable to the trial court's judgment to determine whether any rational jury could have found the essential elements of the offense beyond a reasonable doubt. Brooks v. State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010) (plurality op.) (citing Jackson v. Virginia, 443 U.S. 307, 319 (1979)); Hartsfield v. State, 305 S.W.3d 859, 863 (Tex. App.—Texarkana 2010, pet. ref'd). Our rigorous legal sufficiency review focuses on the quality of the evidence presented. Brooks, 323 S.W.3d at 917-18 (Cochran, J., concurring). We examine legal sufficiency under the direction of the Brooks opinion, while giving deference to the responsibility of the jury "to fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to ultimate facts." Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007) (citing Jackson, 443 U.S. at 318-19); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Further, the jury is the sole judge of the credibility of the witnesses and the weight to be given their testimony and may "believe all of a witnesses' testimony, portions of it, or none of it." Thomas v. State, 444 S.W.3d 4, 10 (Tex. Crim. App. 2014). We give "almost complete deference to a jury's decision when that decision is based on an evaluation of credibility." Hartsfield, 305 S.W.3d at 869 (quoting Lancon v. State, 253 S.W.3d 699, 705 (Tex. Crim. App. 2008)). Circumstantial evidence and direct evidence are equally probative in establishing the guilt of a defendant, and guilt can be established by circumstantial evidence alone. Ramsey v. State, 473 S.W.3d 805, 809 (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13 (citing Guevara v. State, 152 S.W.3d 45, 49 (Tex. Crim. App. 2004)).
Legal sufficiency of the evidence is measured by the elements of the offense as defined by a hypothetically correct jury charge. Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The "hypothetically correct" jury charge is "one that accurately sets out the law, is authorized by the indictment, does not unnecessarily increase the State's burden of proof or unnecessarily restrict the State's theories of liability, and adequately describes the particular offense for which the defendant was tried." Id.
Under the statute and the indictment, to obtain a conviction under count one, the State was required to prove beyond a reasonable doubt that on or about December 19, 2014, Jackson (1) intentionally, knowingly, or recklessly (2) caused bodily injury (3) to Feucht (4) by shooting Feucht with a firearm (5) when Jackson knew Feucht was a public servant, i.e., a police officer, who was discharging an official duty by attempting to detain Jackson, and that (6) Jackson used or exhibited a deadly weapon, to wit, a firearm, in the commission of the assault. See TEX. PENAL CODE ANN. § 22.02(a)(2), (b)(2)(B). To obtain a conviction under count two, the State was required to prove the same elements beyond a reasonable doubt, except that Grace was the named victim. Under count one, Jackson only challenges the legal sufficiency of the evidence to show he knew Feucht was a police officer. Under count two, Jackson challenges the legal sufficiency of the evidence to show (1) that he intentionally, knowingly, or recklessly caused bodily injury to Grace and (2) that he knew Grace was a police officer.
B. Analysis
1. The Evidence at Trial
As relevant to this appeal, the evidence at trial showed that in the early afternoon of December 19, 2014, Grace and Feucht, both detectives with the Burleson Police Department, and Sherra Hawpe, a criminal investigations clerk also with the Department, were on their way to lunch when they received a call regarding a suspicious person at the Wells Fargo Bank. The three were riding in an unmarked city-owned white extended-cab, Dodge pickup truck and they responded to the call. Grace, who was driving, backed into a parking space facing the front door of the bank so they could watch the bank. Feucht was seated in the front passenger's seat and Hawpe was seated in the rear seat behind Feucht. As they waited, they received updates from the police dispatcher (who was communicating on the telephone with a bank employee) about what was then occurring in the bank.
After Jackson robbed the bank, he fled rapidly on foot toward a nearby 7-Eleven convenience store. Hawpe testified that they pulled out of the bank parking lot in pursuit of Jackson and overtook him on the west side of the 7-Eleven. As their pickup came to a stop, Feucht, who was about an arm's-length from Jackson, threw open his door while yelling, "Get on the ground. Police." Hawpe saw Jackson look at Feucht, then she heard a bang. Hawpe testified that Feucht then swung back into the truck and said, "I've been shot." Grace told Hawpe that there was a first aid kit in the back, and she began looking for it. Hawpe then heard some more shots, looked up, and saw Grace out in front of the pickup. Feucht grabbed the hand-held radio and called in to report that he had been shot. Hawpe also saw Grace limping as he walked around to assist Feucht. Although Grace appeared injured, Hawpe did not know at the time that he had been shot. She said that both Feucht and Grace were taken by ambulance to the hospital for gunshot wounds. She also testified that in her opinion, if a person saw somebody get out of a vehicle and yell, "Get down. Police," they would understand they were police officers, especially if the person had just robbed a bank. Hawpe said that when Jackson shot Feucht, he seemed very calm.
On cross-examination, Hawpe testified that the pickup had no markings, lights, sirens, or signs that would distinguish it from a truck driven by a civilian. She also testified that Feucht was in plain clothes and that Grace was wearing his badge on a chain around his neck. In her opinion, if someone at the 7-Eleven had seen the truck, she would not know it was a police vehicle. She also acknowledged that Jackson had been running fast and had a hoodie and cap over his head and ears. Hawpe also testified that she did not know how Jackson could have kept from hearing Feucht yell, "Get on the ground. Police."
Odette Puente testified that she was at the 7-Eleven that day when a young man in khakis and a dark black or blue hoodie ran past her. She then saw a white pickup pull up and park, and a gentleman open the door and yell, "This is the police, get down." As soon as he said that, Puente heard a gunshot. She testified that the young man would have been between the police officer and her and that she clearly heard what the officer yelled. She also saw the bullet hit the officer.
Grace testified that on the day of the robbery, he was working as a plain-clothes detective and wore his badge on a lanyard displayed on his chest. He confirmed Hawpe's testimony regarding the events leading up to their pursuit of Jackson. He testified that when they saw Jackson exit the bank and run toward the 7-Eleven, he pursued him in his truck to try to intercept him. They caught up to Jackson on the west side of the 7-Eleven, and as they were coming to a stop, Feucht opened his door and yelled, "Stop, Police." Grace testified that after Feucht got out of the truck, he saw Jackson and a flash of movement, then heard a bang and felt something hit his leg. At the same time, he heard Feucht say, "I've been shot," and he knew that he had been shot, too. Grace saw Feucht collapse into the passenger's seat, then he exited the truck and fired several rounds at Jackson. Grace described the impact of the bullet as feeling like a baseball bat had hit his leg. He said that the bullet did not puncture his pants, but it did break the skin and caused a significant bruise just above his knee. He testified that he and Feucht were trying to detain Jackson and that Feucht was wearing his badge.
The State also introduced a photograph depicting Grace's injuries.
On cross-examination, Grace testified that Jackson was about ten to fifteen feet away before they stopped, and about six feet away when Feucht opened the door. Their windows were up at the time. When the truck stopped, it did so in front of Jackson, blocking his way. Grace reiterated that Feucht yelled, "Stop, Police," as they were stopping and that Feucht's door was partially open, but he did not remember what Feucht yelled after he got out of the truck. Grace said that Feucht was fully out of the truck and standing on the ground when the shooting occurred. He testified that Jackson was shooting at Feucht, but he did not know if Jackson was shooting at him. He said Jackson fired one shot that traveled through Feucht and hit Grace, but that Jackson was not aiming at Grace.
Feucht testified that on the day of the incident, he wore dress pants and a business shirt, with his badge on the middle right in front. He also confirmed Hawpe's testimony regarding the events prior to the robbery. Feucht testified that as they were pursuing Jackson, they did not expect him to be armed. When they pulled beside of him, he told Grace to cut Jackson off. As they were slowing down, he opened his door and yelled, "Police, Stop," when they were beside Jackson. Jackson reacted by coming to a stop, then backed up a few steps. Feucht stated that based on his reaction, he had no doubt that Jackson heard him. Then, when the truck had stopped, he yelled, "Police, Get down," and exited the truck. Jackson then took a shooting stance, Feucht heard a shot and saw a muzzle flash coming from the center area of Jackson's body, then felt the impact as the round hit him. Based on his training, Feucht testified that a person gets into a shooting stance in reaction to something they have seen or heard. Based on Jackson's stance, what Feucht was yelling, and the situation, Feucht opined that Jackson made a conscious decision to shoot him and that he knew Feucht was a public servant. He also testified that when Jackson fired, there were three people in the line of fire, that it was a highly reckless act, and that it endangered more than one person's life.
Feucht also testified that the bullet hit him in the right side and spun him around to where he was facing the inside of the truck. He saw that blood was coming from his midsection, picked up the radio to report he had been shot, then started first aid. When the firemen got there, they discovered that there was a second through-and-through gunshot wound to his triceps. He was then taken by ambulance to a Fort Worth hospital, where he underwent surgery.
On cross-examination, Feucht testified that four or five seconds elapsed between the time when he told Jackson to stop and when he was hit by the bullet. He remembered Jackson only firing one shot, and he did not see him fire at Grace. He also testified that when Jackson shot him, the distance between them was eleven to seventeen feet.
Michael Owen, a detective for the Burleson Police Department, identified photographs that he had taken at the scene of the shooting. He testified that State's Exhibit 34 showed the bullet that passed through Feucht, struck Grace, and fell to the floorboard of the truck. He also testified that the markings on the bullet were consistent with those made by the .357 Glock handgun that was found behind the 7-Eleven after the shooting of Feucht and Grace. On cross-examination, Owen testified that the laboratory report on Jackson's firearm showed it was consistent with the bullet, but it did not show with certainty that it was the firearm used to shoot Feucht.
2. Sufficient Evidence Supports the Finding that Jackson Knew Feucht Was a Public Servant
In his first point of error, Jackson asserts that there was insufficient evidence to prove he knew Feucht was a public servant. He concedes 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." TEX. PENAL CODE ANN. § 22.02(c) (West 2011). However, he argues against the application of the presumption, pointing out that Feucht was in plain clothes, was riding in an unmarked truck, had his badge attached to his belt, and that no evidence shows that the badge was ever visible to him. Further, he points to the supposed inconsistency in the testimony of the different witnesses as to what, and how many times, Feucht yelled at Jackson, and to how close Jackson was when Feucht yelled, that Jackson was wearing a hoodie and cap over his head and ears, and that the encounter took only a matter of seconds. This testimony, he argues, would support a reasonable inference that he did not hear what Feucht yelled and, therefore, that there was insufficient evidence that he knew Feucht was a public servant.
It is undisputed that a police officer is a public servant. See TEX. PENAL CODE ANN. § 1.07(a)(41)(A) (West Supp. 2016); Carriere v. State, 84 S.W.3d 753, 757 (Tex. App.—Houston [1st Dist.] 2002, pets. ref'd).
We need not decide whether the statutory presumption applies in this case since there is sufficient evidence upon which a rational jury could infer that Jackson knew Feucht was a police officer. A person may act "knowingly" with respect to either the nature of his conduct, the result of his conduct, or the circumstances surrounding his conduct. See TEX. PENAL CODE ANN. § 6.03(b) (West 2011); Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994). Whether Jackson knew Feucht was a police officer refers to the circumstances surrounding his ability to act "knowingly." See Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994). The evidence shows that Jackson was fleeing on foot after having just robbed a bank. Under these circumstances, it is reasonable to infer that Jackson would expect the police to be pursuing him. As he was fleeing, a white truck with at least two occupants pulled up beside him, and a passenger yelled at him, identifying the occupants as "Police" and ordering Jackson to either stop or get on the ground. Hawpe, Feucht, and Grace all testified that Jackson was directly beside Jackson when he first yelled "Police," and both Feucht and Hawpe agreed that Jackson must have heard him. In addition, Puente, a civilian, testified that she clearly heard Feucht yell, "Police" when he exited the vehicle, and that Jackson was positioned between Feucht and her. Finally, Feucht testified that Jackson reacted when he yelled "Police" by first stopping, then taking a shooting stance. Although there was some inconsistency in the witnesses' accounts, the jury could resolve the inconsistencies and reasonably infer, based on this testimony, that Jackson heard Feucht when he yelled, "Stop, Police" and "Get on the ground[, p]olice," even with a hoodie and cap over his head. We assume that the jury considered all of the evidence and any potential inference to be drawn therefrom. Nelson v. State, 848 S.W.2d 126, 132 (Tex. Crim. App. 1992). Therefore, we refuse to second-guess the jury in its finding that Jackson knew, under the circumstances surrounding his conduct, that Feucht was a police officer. We overrule Jackson's first point of error.
3. Sufficient Evidence Supports the Finding that Jackson Knew Grace Was a Public Servant
In his second point of error, Jackson asserts that there was insufficient evidence to prove (1) that he intentionally, knowingly, or recklessly caused bodily injury to Grace and (2) that he knew Grace was a public servant. Regarding his second sub-point, Jackson makes the same arguments as he does regarding Feucht, but adds that there is no evidence showing he ever saw Grace or knew that he was inside the truck. As discussed above, the jury could reasonably infer under the circumstances that Jackson expected to be pursued by the police and that he heard Feucht when he yelled, "Stop, Police" and "Get on the ground[, p]olice." In addition, the evidence showed that Feucht was on the passenger side of the truck, that the truck was moving, and that he opened his door when he first yelled, "Police." It also showed that the truck then pulled in front of Jackson and stopped and that Feucht exited from the passenger side as he again yelled, "Police." Based on this evidence, the jury could reasonably infer that Jackson knew the truck had to have been driven by another person. Further, "police" is a plural noun. Police, MERRIAM-WEBSTER'S COLLEGIATE DICTIONARY (11th ed. 2003). Thus, when multiple police officers are pursuing a suspect, even in plain clothes, if one of the officers shouts "police," he is identifying not only himself, but those accompanying him in the pursuit as police officers. Therefore, when Feucht yelled "Police," he identified both himself and the driver of the truck, Grace, as police officers. We find that the evidence is sufficient to support the jury finding that Jackson knew, under the circumstances surrounding his conduct, that Grace was a police officer.
Regarding his first sub-point, Jackson argues that since there is no evidence that he knew Grace was in the truck or that he was shooting at him, then the evidence is insufficient to prove he intentionally, knowingly, or recklessly caused Grace bodily injury. We disagree.
At a minimum, the State had to prove that Jackson acted recklessly and caused bodily injury to Grace. "A person acts recklessly . . . with respect to . . . the result of his conduct when he is aware of but consciously disregards a substantial and unjustifiable risk that . . . the result will occur." TEX. PENAL CODE ANN. § 6.03(c) (West 2011). Further, "[t]he risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint." Id. The jury may "infer intent from the defendant's acts, words, and conduct." Morales v. State, 293 S.W.3d 901, 908 (Tex. App.—Texarkana 2009, pet. ref'd) (citing Guevara, 152 S.W.3d at 49 & 50). Bodily injury includes "physical pain from 'even relatively minor physical contacts so long as they constitute more than mere offensive touching.'" Id. at 907 (quoting Wawrykow v. State, 866 S.W.2d 87, 89 (Tex. App.—Beaumont 1993, pet. ref'd)).
As we discussed above, the jury could reasonably infer that Jackson knew that there was a person other than Feucht driving the truck. Feucht testified that Grace stopped the truck in a manner that cut off Jackson's route of escape. He also testified that Jackson was between eleven and seventeen feet away when he took a shooting stance and fired at Feucht. Feucht testified that Jackson made a conscious decision to shoot him, that Grace and Hawpe were in the line of fire, and that Jackson's actions endangered their lives. Based on this evidence, the jury could reasonably find beyond a reasonable doubt that Jackson was aware of, and consciously disregarded, the risk that Grace's life would be endangered as a result of his shooting at Feucht.
Further, the evidence is undisputed that the bullet fired by Jackson passed through Feucht and struck Grace. Grace testified that it felt like a baseball bat had hit him and that the impact broke the skin and left a significant bruise. Hawpe testified that afterward Grace was walking with a limp. Based on this evidence, the jury could reasonably find beyond a reasonable doubt that Jackson caused Grace bodily injury. We find there was sufficient evidence to support the jury's finding that Jackson intentionally, knowingly, or recklessly caused bodily injury to Grace.
We overrule Jackson's second point of error.
II. No Reversible Jury Charge Error
In his third and fourth points of error, Jackson asserts for the first time on appeal that the trial court erred by submitting definitions of intentional, knowing, and reckless to the jury without limiting those definitions to the result of his conduct. The jury charge submitted in this case included the following definitions:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
A person acts recklessly, or is reckless, with respect to circumstances surrounding his conduct when he is aware of but consciously disregards a substantial or unjustifiable risk that the circumstances exist or the result will occur. The risk must be of such a nature and degree that its disregard constitutes a gross deviation from the standard of care that an ordinary person would exercise under all the circumstances as viewed from the actor's standpoint.(Emphasis added). Jackson argues that aggravated assault is a result of conduct offense and that, therefore, the mental state definitions should have been limited to the result of conduct element of the culpable mental state definitions. The trial court erred in including the highlighted portions, Jackson argues, because it allowed the jury to consider the nature of his conduct and the circumstances of his conduct. The State agrees that the trial court erred in not limiting the definitions to the result of his conduct, but argues that the error was not reversible.
A. Standard of Review
Our review of alleged jury charge error involves a two-stage process. See Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). "Initially, we determine whether error occurred and then evaluate whether sufficient harm resulted from the error to require reversal." Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at 731-32). "[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the court and be governed thereby." TEX. CODE CRIM. PROC. ANN. art. 36.13 (West 2007). "A trial court must submit a charge setting forth the 'law applicable to the case.'" Lee v. State, 415 S.W.3d 915, 917 (Tex. App.—Texarkana 2013, pet. ref'd) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007)). "The purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its application. It is not the function of the charge merely to avoid misleading or confusing the jury: it is the function of the charge to lead and prevent confusion." Id. (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).
The level of harm necessary to require reversal due to jury charge error is dependent upon whether the appellant properly objected to the error. Abdnor, 871 S.W.2d at 732. When, as in this case, the defendant does not object to the charge, we will not reverse unless the record shows the error resulted in egregious harm, such that he did not receive a fair and impartial trial. See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh'g); Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—Texarkana 2008, no pet.). "Jury-charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory." Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007). In making this determination, we review "the entire jury charge, the state of the evidence, the argument of counsel, and any other relevant information in the record as a whole." Villarreal v. State, 205 S.W.3d 103, 106 (Tex. App.—Texarkana 2006, pet. dism'd, untimely filed) (citing Almanza, 686 S.W.2d at 171).
B. Analysis
While we agree with Jackson and the State that the trial court erred, we do not agree that the culpable mental state definitions should have been limited to the result of conduct element. Section 6.03 of the Penal Code sets forth the definitions of culpable mental states. TEX. PENAL CODE ANN. § 6.03 (West 2011). These definitions "delineate[] three 'conduct elements' which may be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct." Cook, 884 S.W.2d at 487 (quoting McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). A trial court errs when it does not limit the definitions of culpable mental states to the relevant conduct element(s). Hughes, 897 S.W.2d at 296.
The indictment charged that:
[JACKSON DID THEN AND THERE] INTENTIONALLY, KNOWINGLY, OR RECKLESSLY CAUSE BODILY INJURY TO [FEUCHT, GRACE], BY SHOOTING HIM WITH A FIREARM, AND THE DEFENDANT DID THEN AND THERE USE OR EXHIBIT A DEADLY WEAPON, TO-WIT: A FIREARM, DURING THE COMMISSION OF SAID ASSAULT, AND [JACKSON] DID THEN AND THERE KNOW THAT THE SAID [FEUCHT, GRACE] WAS THEN AND THERE A PUBLIC SERVANT, TO-WIT: A PEACE OFFICER, AND THAT THE SAID [FEUCHT, GRACE] WAS THEN AND THERE LAWFULLY DISCHARGING AN OFFICIAL DUTY, TO-WIT: ATTEMPTING TO DETAIN [JACKSON].We agree with Jackson that aggravated assault is a result of conduct offense. Landrian v. State, 268 S.W.3d 532, 537 (Tex. Crim. App. 2008). However, Jackson was charged with the aggravated assaults of Feucht and Grace, who Jackson knew were public servants.
In count one the victim is alleged to have been Feucht and in count two the victim is alleged to have been Grace, but the counts are otherwise identical.
In Hughes, the Court of Criminal Appeals construed an indictment that alleged that the defendant had intentionally and knowingly caused the death of a police officer acting in his official duty and that the defendant knew he was a police officer. Hughes, 897 S.W.2d at 295. The court held that the charged offense included two conduct elements: a result of conduct element related to the defendant intentionally and knowingly causing the death of the deceased and a circumstances surrounding the conduct element related to the defendant knowing the deceased was a police officer. Id. Similarly, the indictment in this case contains a result of conduct element related to Jackson intentionally, knowingly, or recklessly causing bodily injury to Feucht and Grace, and a circumstances surrounding the conduct element related to Jackson knowing Feucht and Grace were public servants. However, because the offense does not include a nature of conduct element, the trial court erred in failing to limit the definitions to the result of conduct and circumstances of conduct elements. See id. at 296.
Having found error, we must determine whether the error caused Jackson egregious harm. As Jackson acknowledges, the Texas Court of Criminal Appeals has held that "[i]n assessing harm resulting from the inclusion of improper conduct elements in the definitions of culpable mental states, we 'may consider the degree, if any, to which the culpable mental states were limited by the application portions of the jury charge.'" Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995) (quoting Hughes, 897 S.W.2d at 296); Riggs v. State, 482 S.W.3d 270, 275 (Tex. App.—Waco 2015, pet. ref'd). "When the application paragraph points the jury to the appropriate portion of the definitions, this mitigates against a finding of egregious harm." Riggs, 482 S.W.3d at 275 (citing Patrick, 906 S.W.2d at 493). Nevertheless, Jackson takes exception to applying this rule, asserting that there was an abundance of extraneous evidence regarding the nature of and the circumstances surrounding his conduct. Jackson does not cite any authority for his argument, and we see no reason on this record for not applying Court of Criminal Appeals precedent.
The application paragraphs in the charge, which were identical for count one and count two, except that count one referred to Feucht and count two referred to Grace, stated:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 19th day of December, 2014, in Johnson County, Texas, [Jackson] did intentionally, knowingly, or recklessly cause bodily injury to [Feucht, Grace], by shooting him with a firearm, and [Jackson] did then and there use or exhibit a deadly
weapon, to-wit: a firearm, during the commission of said assault, and [Jackson] did then and there know that the said [Feucht, Grace] was then and there a public servant, to-wit: a peace officer, and that the said [Feucht, Grace] was then and there lawfully discharging an official duty, to-wit: attempting to detain [Jackson] then you will find [Jackson] guilty of the offense of Aggravated Assault Public Servant-Deadly Weapon as charged in Count [One, Two] of the indictment.Here, as in Hughes, which examined a similar application paragraph, when the definitions "are viewed in their factual context, it becomes apparent which conduct element applies to which element of the offense." Hughes, 897 S.W.2d at 296. The application paragraphs required the jury to find that Jackson "intentionally, knowingly, or recklessly" caused bodily injury to Feucht and Grace. "Intentionally, knowingly, or recklessly" modify the phrase "cause bodily injury." Looking back at the definitions, it is apparent that the "result of his conduct," "cause the result," and "the result will occur" are the applicable portions of the definitions. See id. Likewise, in the application paragraphs the jury was required to find that Jackson "did then and there know that the said [Feucht, Grace] was then and there a public servant." Looking at the definitions, it is apparent that the applicable portion is the "circumstances surrounding the conduct" language. See id.
We find that because the application paragraph pointed the jury to the applicable portions of the definitions, no harm was caused by the trial court's failure to limit the definitions of the culpable mental states to the applicable conduct elements. See id. We overrule Jacksons third and fourth points of error.
We affirm the trial court's judgment.
Bailey C. Moseley
Justice Date Submitted: December 19, 2016
Date Decided: February 27, 2017 Do Not Publish