Summary
finding no egregious harm after non-indicted mental state of recklessness was charged because "[r]ecklessness was not discussed at voir dire or in closing argument at guilt/innocence" and because "[t]here was no evidence that appellant acted recklessly during the incident"
Summary of this case from Gonzalez v. StateOpinion
No. 05-07-00944-CR
Opinion Filed November 25, 2008. DO NOT PUBLISH Tex. R. App. P. 47.
On Appeal from the 292nd Judicial District Court Dallas County, Texas, Trial Court Cause No. F05-55399-MV.
Before Justices MOSELEY, RICHTER, and FRANCIS.
MEMORANDUM OPINION
A jury convicted Quincy Starks of the offense of aggravated robbery and assessed punishment of twenty-five years' incarceration. See Tex. Penal Code Ann. §§ 29.03(a)(2), 29.02(a)(1) (Vernon 2003). The judgment includes a deadly weapon finding. In a single issue, appellant argues the trial court erred by charging the jury on a theory of law-recklessly causing bodily injury-that was not pleaded in the indictment, causing him egregious harm. Concluding appellant suffered no egregious harm, we affirm. Because the facts are well known to the parties and the law is settled, we issue this memorandum opinion. See Tex. R. App. P. 47.4. The indictment alleged that, in the course of committing theft from Allen Roy, appellant intentionally and knowingly caused Roy bodily injury by striking him with a firearm and using and exhibiting a deadly weapon during the offense. The evidence at trial established that appellant was one of three masked men who kicked in a door of an apartment where Roy and others were playing video games. Appellant threatened Roy with a handgun and hit him in the head with it. The intruders took video game equipment and Roy's wallet. As he was leaving, appellant took his mask off and told Roy to remember his face. Roy did. Appellant was arrested shortly after the incident in a car taken in the incident. Later, Roy identified appellant in a police line up. The jury charge included the culpable mental state of "recklessly" in the definition of robbery, defined "recklessly," and authorized conviction in the application paragraph if, in part, appellant, as a principal or party, intentionally, knowingly, or recklessly caused the bodily injury. Appellant argues that the trial court erred in charging the jury on recklessness, when the indictment only alleged that bodily injury was caused intentionally and knowingly. The State replies that egregious harm is not shown here. Generally, a trial court errs by including a culpable mental state in the application paragraph of the jury charge that was not alleged in the indictment. Reed v. State, 117 S.W.3d 260, 265 (Tex.Crim.App. 2003); Alvarado v. State, 912 S.W.2d 199, 216 (Tex.Crim.App. 1995). When, as here, the appellant did not object at trial, reversal is not warranted unless the error was so egregious and created such harm that appellant was denied a fair trial. Warner v. State, 245 S.W.3d 458, 461 (Tex.Crim.App. 2008). To determine egregious harm, a reviewing court examines the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the arguments of counsel, and any other relevant information revealed by the record of the trial as a whole. Id. The appellant must have suffered actual, rather than theoretical, harm. Id. Errors that result in egregious harm are those that affect "the very basis of the case," "deprive the defendant of a valuable right," or "vitally affect a defensive theory." Id. at 461-62 (citation omitted). The record shows that "intentional" and "knowing" were the only culpable mental states mentioned or argued at trial. Recklessness was not discussed at voir dire or in closing argument at guilt/innocence. Furthermore, there was testimony that all appellant's acts, including those described above, were knowing and intentional. There was no evidence that appellant acted recklessly during the incident, and appellant presented no defensive theory that involved a lack of intent or that he only acted recklessly. See Tex. Penal Code Ann. § 6.03(a) (Vernon 2003) (person acts recklessly regarding circumstances of conduct of result of conduct "when he is aware of but consciously disregards a substantial an unjustifiable risk that the circumstances exist or the result will occur"); Alvarado, 912 S.W.2d at 216-17. Thus, appellant's exact culpable mental state was not an issue in the trial. Having examined the record, we cannot say the complained-of error was so egregious and created such harm that appellant was denied a fair trial, thus warranting reversal. See Warner, 245 S.W.3d at 461. We resolve appellant's issue against him, We affirm the trial court's judgment.