Opinion
No. 04-01-00455-CR
Delivered and Filed: August 1, 2003 Do Not Publish
Appeal From the 187th Judicial District Court, Bexar County, Texas, Trial Court No. 2000-CR-5468, Honorable Raymond Angelini, Judge Presiding, Supplemental Opinion on Appellant's Petition for Discretionary Review. AFFIRMED
Sitting: Catherine STONE, Justice, Paul W. GREEN, Justice, Sandee Bryan MARION, Justice.
MEMORANDUM OPINION
Ricardo Sierra, Jr. filed a petition for discretionary review with the Texas Court of Criminal Appeals. We write to clarify our opinion in light of issues raised in Sierra's petition. In his petition, Sierra contends that our opinion contradicts the Texas Court of Criminal Appeals's decision in Reed v. State, No. 1410-01, 2003 WL 21077409 (Tex.Crim.App. May 14, 2003), which issued shortly after our opinion. We consider Reed distinguishable from the instant matter. In Reed, the defendant was indicted for the offense of aggravated assault. The indictment only alleged the mental states of "intentionally" and "knowingly." The trial court, however, charged the jury as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 20th day of June, A.D., 1999, in Dallas County, Texas, the defendant, ANTHONY JAMES REED, did then and there intentionally or knowingly or recklessly cause bodily injury to ANITA GAITLIN, . . . by shooting said complainant, and said defendant did use or exhibit a deadly weapon, to wit: a firearm, during the commission of the offense, then you will find the defendant guilty of Aggravated Assault with a deadly weapon as charged.Id. at *1 (emphasis added). The defendant objected to the charge. The Texas Court of Criminal Appeals held that the trial court improperly broadened the indictment by including "recklessly" in the jury instructions. Id. at *5. Unlike the jury charge in this case, the jury charge in Reed did not instruct the jury on transferred intent. Because Reed does not address transferred intent, we do not find it dispositive of this appeal. In our opinion, we stated "The evidence in the instant matter raises the issue of transferred intent from crime to crime. See Franklin v. State, 992 S.W.2d 698, 705-6 (Tex.App.-Texarkana 1999, pet ref'd) (explaining the type of evidence needed to raise transferred intent)." Sierra v. State, No. 04-01-00455-CR, 2003 WL 1973159 at *4 (Tex.App.-San Antonio, April 30, 2003, pet. filed). We add to that statement for the sake of clarification. The issue of transferred intent in this case was raised in the context that a different offense was committed from that which was contemplated by the defendant. See Bagsby v. State, 721 S.W.2d 567, 570 (Tex.App.-Fort Worth 1986, no pet.); see also Tex. Pen. Code Ann. § 6.04(b)(1) (Vernon 2003). As noted in our original opinion, the trial court included two application paragraphs. The first application paragraph charged the jury on aggravated assault as follows: Now, if you find from the evidence beyond a reasonable doubt, that on or about the 6th day of September, A.D., 2000, in Bexar County, Texas, the defendant Ricardo Sierra, Jr., did knowingly or intentionally use a deadly weapon, namely: a firearm, and did knowingly and intentionally cause bodily injury to Angela Ramirez by shooting Angela Ramirez with said deadly weapon, then you will find the defendant guilty of aggravated assault with a deadly weapon as charged in the indictment. We conclude that even if the trial court erred by defining the term "reckless" and inserting that term in its second application paragraph the error was harmless. Sierra did not object to the charge. Therefore, the error, if any, does not require reversal unless it is so egregious and created such harm that it denied Sierra a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1984). We generally assess the actual degree of harm from "the entire jury charge, the state of the evidence, including contested issues and the weight of the probative evidence, the argument of counsel and any other relevant information revealed by the record of the trial as a whole." Id. Where a jury charge contains alternative theories of culpability, the harmfulness of the error in the charge is measured, at least in part, against the likelihood that the jury's verdict was actually based on the alternative theory of culpability not affected by the erroneous portions of the charge. Atkinson v. State, 923 S.W.2d 21, 27 (Tex.Crim.App. 1996) overruled on other grounds by Motilla v. State, 78 S.W.3d 352, 356-57 (Tex.Crim.App. 2002); Rivera v. State, 12 S.W.3d 572, 577 (Tex.App.-San Antonio 2000, no pet.). No harm is shown where the (1) the evidence clearly supports the defendant's guilt under the alternate theories unaffected by the erroneous portion of the charge; (2) the State relies most heavily on the alternate theory; and (3) it is very likely the jury's verdict was based on the alternate theory. Rivera, 12 S.W.3d at 577; Butler v. State, 981 S.W.2d 849, 857-58 (Tex.App.-Houston [1st Dist.] 1998, pet. ref'd). The trial court properly charged the jury on aggravated assault in its first paragraph. Furthermore, the evidence supports Sierra's guilt on aggravated assault. The jury heard Sierra's testimony that he pawned his television and VCR to purchase a gun. He took the gun with him and drove to the Ramirez residence. Once he arrived, he removed the gun from the car and approached the house aware that the women had just entered the house. Ramirez testified that Sierra looked at her through the door, pointed the gun down, and fired the gun, striking her leg. A review of the State's opening statement and closing argument reflects that the State relied heavily on the theory that Sierra committed aggravated assault by intentionally or knowingly causing bodily injury to Ramirez. Finally, based on the evidence, it is likely the jury found Sierra guilty of aggravated assault because the evidence was compelling that he used a deadly weapon and intentionally or knowingly caused bodily injury to Ramirez.
On appeal, Sierra states that the trial court properly instructed the jury on the definitions of "aggravated assault," "intentionally," and "knowingly." Also, Sierra does not take issue with the first application paragraph.