Opinion
No. 05-09-00278-CR
Opinion Issued July 6, 2010. DO NOT PUBLISH. Tex. R. App. P. 47.
On Appeal from the 265th Judicial District Court, Dallas County, Texas, Trial Court Cause No. F08-56672-VR.
Before Justices O'NEILL, FRANCIS, and MURPHY.
MEMORANDUM OPINION
James Ralph Johnson appeals his conviction for the aggravated assault of Pablo Carrizales. After the jury found appellant guilty and found he used or exhibited a deadly weapon during commission of the offense, the trial court assessed punishment, enhanced by one prior conviction, at twenty-five years in prison. In his sole point of error, appellant claims the trial court's failure to properly instruct the jury on the appropriate culpable mental state constitutes fundamental reversible error. We affirm. For charge error that was not preserved at trial, the error must have been so harmful that appellant was denied "a fair and impartial trial." Almanza v. State, 686 S.W.2d 157, 171-74 (Tex. Crim. App. 1984). In other words, appellant must have suffered actual "egregious" harm. Almanza, 686 S.W.2d at 171. For both preserved and unpreserved charging error, "the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including 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." Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995) (citing Arline v. State, 721 S.W.2d 348, 351-52 (Tex. Crim. App. 1986)). In 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, 906 S.W.2d at 492. A person commits the offense of aggravated assault if he intentionally, knowingly, or recklessly causes bodily injury to another and uses or exhibits a deadly weapon during the commission of the offense. Tex. Penal Code Ann. § 22.02(a)(2) (Vernon Supp. 2009). Aggravated assault is a result-oriented offense. Landrian v. State, 268 S.W.3d 532, 533, 537 (Tex. Crim. App. 2008). In a jury charge for a result-oriented offense, the statutory definitions of the culpable mental state should be limited to the result of the conduct. Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). Appellant was indicted for intentionally, knowingly, and recklessly causing bodily injury to Carrizales by cutting and stabbing Carrizales with a box cutter, a deadly weapon. The definition portion of the jury charge defined the culpable mental states with respect to the circumstances surrounding, nature and result of conduct. However, the application paragraph in this case did not include the expansive language contained in the abstract section of the charge; rather, it instructed that in order to find appellant guilty, the jury was required to find that he intentionally, knowingly or recklessly caused the prohibited result. The "circumstances surrounding" and "nature of conduct" language used in the court's abstract paragraphs was not repeated in the application paragraph. The law as recited in the application paragraph, correctly pointed the jury to the appropriate mental state. Further, the testimony of witnesses at trial showed appellant accused Carrizales of owing him money. Although Carrizales denied owing appellant any money, appellant insisted and threatened Carrizales with a box cutter. Appellant later punched Carrizales, then reached inside his pants pocket. Carrizales, sensing appellant was reaching for the box cutter, grabbed a two-foot stick to protect himself. Carrizales hit appellant and knocked the box cutter from his hand. Thinking the fight was over, Carrizales threw the stick away. Appellant then repeatedly attacked Carrizales with the box cutter, inflicting numerous injuries. When appellant heard police sirens, he ran away. A bleeding Carrizales was taken to the hospital with a collapsed lung and numerous stab wounds. In contrast to the testimony of Carrizales and others, appellant testified he only cut Carrizales in self-defense. The jury chose not to believe that evidence. Even with the self defense claim, no conflicting evidence exists on whether appellant intended to cause the injuries. The State's closing argument focused on appellant's intent to commit the offense and did not refer to the nature of conduct or circumstances surrounding the conduct language in the definitions. The argument was based on the result of conduct. We conclude appellant did not suffer egregious harm due to the erroneous definitions in the charge, nor was he denied a fair trial. We overrule appellant's sole point of error. We affirm the trial court's judgment.