No. 10-03-00007-CR
Opinion delivered and filed June 23, 2004. DO NOT PUBLISH.
Appeal from the 82nd District Court Falls County, Texas, Trial Court # 7706. Affirmed.
Before Chief Justice GRAY, Justice VANCE, and Justice REYNA.
BILL VANCE, Justice.
Appellant shot Calvin Penny. A jury rejected his self-defense claim, found him guilty, and assessed seven years in prison, to which the court sentenced him. The sole claim on appeal is errors in the jury charge, i.e., an incorrect definition of "deadly force" and the failure to define "serious bodily injury." Finding error in the charge but not egregious harm, we will affirm the judgment.
INCORRECT DEFINITION
When reviewing charge errors, an appellate court must undertake a two-step review: first, the court must determine whether error actually exists in the charge, and second, the court must determine whether sufficient harm resulted from the error to require reversal. Abdnor v. State, 871 S.W.2d 726, 731-32 (Tex.Crim. App. 1994); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim. App. 1985) (on rehearing). Appellant concedes that he did not object to the charge at trial. Thus, even if we find error, we should not reverse in the absence of "egregious harm" to the defendant. Almanza, 686 S.W.2d at 171. The charge instructed the jury that the term "deadly force" means "a belief that would be held by an ordinary and prudent person in the same circumstances as defendant." The State concedes that the definition is not correct. We agree that the charge contains the error and proceed to a determination of whether Appellant suffered "egregious harm." In evaluating whether charge error caused some harm or egregious harm to the accused, the appellate court considers (1) the entire jury charge, (2) the evidence produced at trial, the contested issues and the weight of the probative evidence, (3) the attorneys' arguments, and (4) any other relevant information revealed by the record of the trial as a whole. Ovalle v. State, 13 S.W.3d 774, 786 (Tex.Crim.App. 2000) (quoting Almanza, 686 S.W.2d at 171). As the State points out, other provisions in the charge provided proper instructions on the law of self-defense. The testimony at trial by the State's witnesses that Penny was unarmed and standing still stood in stark contrast to Appellant's testimony that Penny had a gun and was coming at him fast. Counsel argued from the differing standpoints presented by the conflict in testimony. The jury's decision turned on credibility and in our view was not influenced by the mistake in the charge. We do not find egregious harm. FAILURE TO DEFINE
Appellant's remaining complaint is that the court failed to define "serious bodily injury." This complaint fails because Almanza does not govern unobjected-to omissions from the charge — only "errors" actually in the charge. Posey v. State, 966 S.W.2d 57, 61 (Tex.Crim.App. 1998). Failure to object to an omission in the charge results in waiver of the complaint. Id. CONCLUSION
Appellant's complaints about the jury charge are overruled. We affirm the judgment.