Tonieka Renea McIlvennia, AKA Tonieka Reanea McIlvenna, AKA Tonieka Renea Burnside, AKA Tonieka James v. State

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-14-00352-CR

Tonieka Renea McIlvennia, AKA Tonieka Reanea McIlvenna,

AKA Tonieka Renea Burnside, AKA Tonieka James, Appellant

v.

The State of Texas, Appellee

FROM THE DISTRICT COURT OF BELL COUNTY, 27TH JUDICIAL DISTRICT

NO. 71094, THE HONORABLE JOHN GAUNTT, JUDGE PRESIDING

MEMORANDUM OPINION

A jury found appellant Tonieka Renea McIlvennia, AKA Tonieka Reanea McIlvenna

AKA Tonieka Renea Burnside AKA Tonieka James, guilty of aggravated assault on a public servant

and evading detention with a vehicle. See Tex. Penal Code §§ 22.02(a)(2), (b)(2)(B), 38.04. The

trial court assessed appellant’s punishment at confinement in the Texas Department of Criminal

Justice 25 for years on the assault offense and ten years on the evading offense, ordering the

sentences to run concurrently. See id. §§ 12.32, 12.425. In five points of error, appellant challenges

the sufficiency of the evidence and complains about error in the jury charge. We affirm the trial

court’s judgments of conviction.

BACKGROUND

Officer John Jones, an officer with the Killeen Police Department, was on patrol

when he observed a car that had been reported stolen pull into a convenience store parking lot. He

confirmed that the car was still listed as stolen and called for back-up. He pulled in and parked his

marked patrol car at an angle behind the stolen car. He saw the driver go inside the store, but knew

a passenger remained in the car. Moments later he observed the driver come out of the store, go to

the passenger side of the car, and lean over to speak to the passenger. The evidence at trial

demonstrated that appellant was the passenger in the stolen car. Officer Jones instituted a “high-risk

felony stop,” approaching the driver on the passenger side of the car. He was wearing his police

uniform with departmental patches on the sleeves, had his police badge displayed, and had his

service weapon drawn. He directed the driver to turn around, back toward him, and get down on his

knees. The driver complied with the officer’s commands.

As Officer Jones was initiating the detention of the driver, Officer Cristina Ocampo,

also with the Killeen Police Department, arrived in her marked patrol car, with emergency lights

flashing, to assist. Like Officer Jones, Officer Ocampo was wearing her police uniform with

departmental patches on the sleeves and had her police badge displayed. Officer Ocampo

handcuffed the driver and placed him in her patrol car. As the officers detained and effected the

arrest of the driver, appellant moved from the passenger seat of the stolen car to the driver seat.

Officer Jones then moved to the driver side of the car. Appellant, who was talking on her cell phone,

rolled down the driver side window and inquired about what was happening. Officer Jones still had

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his weapon drawn and instructed appellant to get off the phone and get out of the car. He repeated

this command several times but appellant did not comply.

After she finished arresting the driver, Officer Ocampo joined Officer Jones on the

driver side of the car. Both officers repeated their command for appellant to get off the phone and

exit the vehicle but appellant still did not comply. Finally, both officers approached the car together

and Officer Jones opened the car door. He warned appellant that if she did not get out of the car she

would be tased. At this point, the car door was wide open and both officers were standing at the

door jamb. Appellant still did not comply with the officers’ commands. Officer Jones then reached

into the car to grab appellant in an attempt to remove her from the car. Appellant resisted, and the

car lurched forward then rolled back slightly. The officers then heard the engine rev.

Officer Ocampo ordered appellant to put the car in park. Officer Jones told Officer Ocampo to tase

appellant. Officer Ocampo, standing within an arm’s reach of appellant, tased appellant. At that

point, the car accelerated rapidly backwards. The driver side door struck Officer Ocampo briefly as

she moved to get out of the way and swept Office Jones with it, knocking him to the ground.

Appellant executed a donut turn in the parking lot and then backed out onto the street.

Officer Ocampo ran after the car with her weapon drawn yelling for appellant to stop. Instead,

appellant sped off, screeching her tires, driving through a four-way stop without stopping.

Officer Ocampo returned to assist Officer Jones, who appeared to be “lifeless” as he lay on the

ground.1 Other officers and emergency medical personnel responded to the scene. The stolen car,

1

Officer Jones suffered a dislocated and fractured shoulder, which required five months of

physical therapy before he was allowed to return to work after six months. At the time of trial, two

and a half years later, his injuries were still not completely healed.

3

with Taser leads coming from the driver side door, was found abandoned about one mile from the

convenience store approximately one hour later. Appellant was apprehended five days later.

DISCUSSION

Appellant raises five points of error: two challenging the sufficiency of the evidence,

three complaining about error in the jury charge.

Sufficiency of the Evidence

Due process requires that the State prove, beyond a reasonable doubt, every element

of the crime charged. Jackson v. Virginia, 443 U.S. 307, 313 (1979); Rabb v. State, 434 S.W.3d 613,

616 (Tex. Crim. App. 2014). When reviewing the sufficiency of the evidence to support a

conviction, we consider all the evidence in the light most favorable to the verdict to determine

whether, based on that evidence and the reasonable inferences therefrom, any rational trier of

fact could have found the essential elements of the offense beyond a reasonable doubt. Jackson,

443 U.S. at 319; Temple v. State, 390 S.W.3d 341, 360 (Tex. Crim. App. 2013); Brooks v. State,

323 S.W.3d 893, 899 (Tex. Crim. App. 2010). In our sufficiency review we must consider all the

evidence in the record, whether direct or circumstantial, properly or improperly admitted, or

submitted by the prosecution or the defense. Thompson v. State, 408 S.W.3d 614, 627 (Tex.

App.—Austin 2013, no pet.); see Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007);

Finley v. State, 449 S.W.3d 145, 147 (Tex. App.—Austin 2014), aff’d, 484 S.W.3d 926, (Tex. Crim.

App. 2016). We review all the evidence in the light most favorable to the verdict and assume that

the trier of fact resolved conflicts in the testimony, weighed the evidence, and drew reasonable

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inferences in a manner that supports the verdict. Jackson, 443 U.S. at 318; see Laster v. State,

275 S.W.3d 512, 517 (Tex. Crim. App. 2009). We consider only whether the factfinder reached a

rational decision. Isassi v. State, 330 S.W.3d 633, 638 (Tex. Crim. App. 2010) (“Our role on appeal

is restricted to guarding against the rare occurrence when a factfinder does not act rationally.”).

To determine whether the State has met its evidentiary burden of proving a defendant

guilty beyond a reasonable doubt, we compare the elements of the offense as defined by the

hypothetically correct jury charge to the evidence adduced at trial. Thomas v. State, 444 S.W.3d 4,

8 (Tex. Crim. App. 2014) (citing Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997));

Felder v. State, No. 03-13-00707-CR, 2014 WL 7475237, at *2 (Tex. App.—Austin Dec. 19, 2014,

no pet.) (mem. op., not designated for publication). A 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.” Thomas, 444 S.W.3d at 8

(quoting Malik, 953 S.W.2d at 240); Roberson v. State, 420 S.W.3d 832, 840 (Tex. Crim. App.

2013). The law as authorized by the indictment consists of the statutory elements of the

charged offense as modified by the factual details and legal theories contained in the indictment.

Patel v. State, No. 03-14-00238-CR, 2016 WL 2732230, at *2 (Tex. App.—Austin May 4, 2016,

no pet. h.) (mem. op., not designated for publication); see Thomas, 444 S.W.3d at 8 (“The ‘law as

authorized by the indictment’ consists of the statutory elements of the offense and those elements

as modified by the indictment.”); Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013)

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(“The law as ‘authorized by the indictment’ includes the statutory elements of the offense ‘as

modified by the charging instrument.’”).

Aggravated Assault on a Public Servant

In her first point of error, appellant argues that the evidence was insufficient to

support her conviction for aggravated assault on a public servant because the evidence failed to show

that Officer John Jones was a public servant as defined by statute.

As relevant to the indicted charge here, a person commits aggravated assault if she

“intentionally, knowingly, or recklessly causes bodily injury to another” and “uses or exhibits a

deadly weapon during the commission of the assault,” see Tex. Penal Code §§ 22.01(a)(1),

22.02(a)(2), and commits the offense against someone she knows is a public servant while the public

servant is lawfully discharging an official duty, see id. § 22.02(b)(2)(B). The Texas Penal Code

defines “public servant” as, in relevant part, “a person elected, selected, appointed, employed, or

otherwise designated as an officer, employee, or agent of government.” See id. § 1.07(41). The term

“government” means “(A) the state; (B) a county, municipality, or political subdivision of the state;

or (C) any branch or agency of the state, a county, municipality, or political subdivision.” See id.

§ 1.07(24). The record contains evidence demonstrating that at the time of the alleged assault

offense, Jones was employed as a patrol officer with the Killeen Police Department. Appellant never

disputed this evidence either below or on appeal. Instead, while acknowledging this evidence, she

maintains that “the State did nothing to connect this evidence with anything in the . . . statutory

definition of public servant.”

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However, Jones’s testimony—that he was a patrol officer and peace officer employed

with the Killeen Police Department at the time of the assault—demonstrated that Jones was both an

officer and employee of a municipality (as well as an agency of a municipality) when the aggravated

assault was committed. Because we measure the sufficiency of the evidence against the

hypothetically correct jury charge, see Thomas, 444 S.W.3d at 8, this evidence was sufficient to

establish that Officer Jones was a public servant within the meaning of the Penal Code. See Carr

v. State, No. 14-09-00322-CR, 2010 WL 2835663, at *3–4 (Tex. App.—Houston [14th Dist.]

July 20, 2010, pet. ref’d) (mem. op., not designated for publication) (observing that “many courts

have held that the term ‘public servant’ necessarily contemplates a police officer”); Campbell

v. State, 128 S.W.3d 662, 668 (Tex. App.—Waco 2003, no pet.), overruled on other grounds by

Brumbalow v. State, 432 S.W.3d 348 (Tex. App.—Waco 2014, no pet.) (recognizing that “‘public

servant’ is a broad term including ‘peace officers’ and ‘police officers’”); Carriere v. State,

84 S.W.3d 753, 757 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d) (noting that “[a]lthough not

explicitly included in the Penal Code definition of a ‘public servant,’ courts have interpreted public

servant to include a police officer,” and holding that police officer is public servant within meaning

of criminal retaliation statute); Hoitt v. State, 28 S.W.3d 162, 165 (Tex. App.—Texarkana 2000),

pet. dism’d, improvidently granted, 65 S.W.3d 59 (Tex. Crim. App. 2001) (“A municipal police

officer is a public servant within the meaning of the Penal Code.”); McCoy v. State, 932 S.W.2d 720,

723 (Tex. App.—Fort Worth 1996, pet. ref’d) (holding that municipal police officer is public servant

for purposes of statutes criminalizing aggravated assault and retaliation against public servant).

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Accordingly, the evidence was sufficient to support appellant’s conviction for aggravated assault on

a public servant. We overrule appellant’s first point of error.

Evading Detention with a Vehicle

In her fifth point of error, appellant contends that the evidence was insufficient to

support her conviction for evading detention with a vehicle because the evidence failed to show that

she knew that Cristina Ocampo was a police officer attempting to detain her.

As relevant to the evading detention alleged here, a person commits an offense if she

intentionally flees from a person she knows is a peace officer attempting lawfully to arrest or detain

her. See Tex. Penal Code § 38.04(a). The offense is a third degree felony if the defendant uses a

vehicle while in flight. See id. § 38.04(b)(2)(A). Appellant does not dispute that as a police officer

for the City of Killeen, Ocampo was a peace officer for purposes of the evading detention statute.

See id. § 1.07(36); Tex. Code Crim. Proc. art. 2.12, § 3. Rather, after chronologically detailing the

two dash-cam videos from the patrol cars, appellant asserts that the evidence failed to prove “that

[appellant] was even aware that Officer Ocampo was present, let alone that she was a police officer

attempting to detain [her].” Appellant’s claim, however, is based on a limited review of only a

portion of the evidence, which is contrary to the well-established procedure for conducting a legal

sufficiency review. See Clayton, 235 S.W.3d at 778 (in conducting legal sufficiency review, courts

assess “all of the evidence”); Boston v. State, 373 S.W.3d 832, 836 (Tex. App.—Austin 2012), aff’d,

410 S.W.3d 321 (Tex. Crim. App. 2013) (“In determining the legal sufficiency of the evidence, we

must consider all the evidence in the record, whether direct or circumstantial, properly or improperly

admitted, or submitted by the prosecution or the defense.”) (citations omitted).

8

The evidence at trial—which included the testimony of the police officers in addition

to the dash-cam videos from their patrol cars—showed that appellant repeatedly refused to comply

with the officers’ commands to get out of the car. Both officers approached the car together. After

Officer Jones opened the car door, both officers stood together at the door jamb. Officer Jones had

his gun drawn and Officer Ocampo had her Taser drawn when Officer Jones warned appellant to get

out of the car or she would be tased. When appellant still did not get out of the car, Officer Jones

reached into the car to pull her out while Officer Ocampo again told her to get out of the car.

Appellant resisted being removed from the car and moved both hands toward the passenger side of

the car, making furtive movements. As she resisted, the car lurched forward, then rolled back. The

officers then heard the engine rev. Officer Jones yelled for Officer Ocampo to tase appellant and

Officer Ocampo yelled at appellant to put the car in park. Appellant responded to Officer Ocampo

stating that “[she was] trying.” Officer Ocampo was standing immediately next to Officer Jones in

the door jamb, within an arm’s reach of appellant, about one foot away, when she tased appellant.

At that point, the car accelerated rapidly backwards, striking Officer Ocampo briefly as she moved

to get out of the way. Appellant executed a donut turn in the parking lot, backed out onto the street,

and sped off as Officer Ocampo ran after the car with her weapon drawn yelling for appellant to stop.

Officer Ocampo was dressed in her police uniform as she stood at the door jamb next

to Officer Jones ordering appellant to get out of the car. She was within an arm’s reach of appellant

when she commanded her to put the car in park. Appellant’s response—“I’m trying. I’m

trying.”—demonstrates that she was aware of Officer Ocampo’s presence. Officer Ocampo tased

appellant from about one foot away after appellant repeatedly refused to comply with verbal

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commands from both Officer Jones and Officer Ocampo. As appellant backed up the car and drove

off, Officer Ocampo ran after her yelling for her to stop. From the evidence of these interactions

between appellant and Officer Ocampo, the jury could reasonably conclude that appellant knew that

Officer Ocampo was trying to detain her.

Evidence is sufficient to support a conviction when, based on the evidence and

reasonable inferences therefrom, any rational fact finder could have found the essential

elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Anderson v. State,

416 S.W.3d 884, 888 (Tex. Crim. App. 2013). Based on the evidence presented at trial and the

reasonable inferences therefrom, we conclude that the jury could have rationally found beyond a

reasonable doubt that appellant knew that Officer Ocampo was a peace officer attempting to detain

her. Therefore, the evidence was sufficient to support appellant’s conviction for evading detention

with a vehicle. We overrule appellant’s fifth point of error.

Jury Charge Error

During the charge conference at the end of the guilt-innocence phase of trial,

appellant did not object to the court’s charge or request any instructions. On appeal, she raises three

points of error complaining about error in the court’s jury charge. She asserts that the addition of

an instruction to the statutory definition of “public servant” constituted an improper comment on the

weight of the evidence, the omission of a statutory definition of “government” was error, and the

failure to give the statutory instructions regarding the law on statutory presumptions was error.

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Standard of Review

We review alleged jury charge error in two steps: first, we determine whether error

exists; if so, we then evaluate whether sufficient harm resulted from the error to require reversal.

Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State, 175 S.W.3d 738, 743–44

(Tex. Crim. App. 2005). The degree of harm required for reversal depends on whether the jury

charge error was preserved in the trial court. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1985) (op. on reh’g). If the jury charge error has been properly preserved by an objection or

request for instruction, reversal is required if the appellant has suffered “some harm” from the error.

Vega v. State, 394 S.W.3d 514, 519 (Tex. Crim. App. 2013); Almanza, 686 S.W.2d at 171; see

Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009) (“If there was error and appellant

objected to the error at trial, reversal is required if the error ‘is calculated to injure the rights of the

defendant,’ which we have defined to mean that there is ‘some harm.’”). When the charge error was

not properly preserved by an objection or request for instruction, the error must be “fundamental”

and requires reversal only if it was “so egregious and created such harm that the defendant was

deprived of a fair and impartial trial.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App.

2015); Almanza, 686 S.W.2d at 171.

The Alleged Error

Addition to Public Servant Definition

In her second point of error, appellant complains about the trial court’s definition of

“public servant” in the abstract portion of the jury charge, which set forth the following definition:

“Public servant means a person elected, selected, appointed, employed or otherwise designated as

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an officer, employee or agent of government. A police officer is a public servant.” The first

sentence is consistent with the statutory definition of “public servant” in the Penal Code. See Tex.

Penal Code § 1.07(41)(A). The second sentence, however, is not contained in the statutory

definition. Appellant argues that the addition of this sentence constituted an impermissible comment

on the weight of the evidence.

Juries are free to “consider and evaluate the evidence in whatever way they consider

it relevant to the statutory offenses.” Kirsch v. State, 357 S.W.3d 645, 651 (Tex. Crim. App. 2012)

(quoting Walters v. State, 247 S.W.3d 204, 211 (Tex. Crim. App. 2007)). Accordingly, the Code

of Criminal Procedure requires that instructions to the jury be limited to setting forth the law

applicable to the case and that they not express any opinion as to the weight of the evidence. Green

v. State, 476 S.W.3d 440, 445 (Tex. Crim. App. 2015), cert. denied, 15-1250, 2016 WL 1381480

(U.S. May 23, 2016); see Tex. Code Crim. Proc. art. 36.14 (trial court is required to give jury written

charge “setting forth the law applicable to the case; not expressing any opinion as to the weight of

the evidence, not summing up the testimony, discussing the facts or using any argument in [its]

charge calculated to arouse the sympathy or excite the passions of the jury”). “[S]pecial,

non-statutory instructions, even when they relate to statutory offenses or defenses, generally have

no place in the jury charge.” Kirsch, 357 S.W.3d at 651 (quoting Walters, 247 S.W.3d at 211). A

non-statutory instruction constitutes a prohibited comment on the weight of the evidence if that

instruction (1) is not grounded in the Penal Code, (2) is covered by the general charge to the jury,

and (3) focuses the jury’s attention on a specific type of evidence that may support an element of an

offense or a defense. Walters, 247 S.W.3d at 212; see Kirsch, 357 S.W.3d at 651. Further, “[a]n

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instruction, albeit facially neutral and legally accurate, may nevertheless constitute an improper

comment on the weight of the evidence.” Kirsch, 357 S.W.3d at 651; see, e.g., Brown v. State,

122 S.W.3d 794, 797 (Tex. Crim. App. 2003).

Here, the complained-of instruction—that a police officer is a public servant—is not

grounded in the Penal Code, the content of the instruction is covered by the general charge to the jury

(in the statutory definition of “public servant”), and the proposed instruction focused the jury’s

attention on a specific type of evidence that may support an element of the offense. See Walters,

247 S.W.3d at 212. Although the trial court’s instruction was a correct, neutral statement of the law

regarding police officers as public servants and merely incorporated existing case law,2 it impinged

on the jury’s fact-finding authority by “improperly tell[ing] the jury how to consider certain evidence

before it.” See Walters, 247 S.W.3d at 214. Further, while the instruction set forth in the charge is

an appropriate definition for an appellate court to apply in assessing the sufficiency of the evidence

to support the “public servant” element, instructing the jurors as to that definition in this case

impermissibly guided their understanding of the term. See Kirsch, 357 S.W.3d at 652; see also Carr,

2010 WL 2835663, at *9 (“While the instruction, ‘a public servant means a police officer,’

2

We noted this case law in our discussion of appellant’s sufficiency challenge in her first

point of error, see supra p. 7: Carr v. State, No. 14-09-00322-CR, 2010 WL 2835663, at *3–4 (Tex.

App.—Houston [14th Dist.] July 20, 2010, pet. ref’d) (mem. op., not designated for publication);

Campbell v. State, 128 S.W.3d 662, 668 (Tex. App.—Waco 2003, no pet.), overruled on other

grounds by Brumbalow v. State, 432 S.W.3d 348 (Tex. App.—Waco 2014, no pet.); Carriere

v. State, 84 S.W.3d 753, 757 (Tex. App.—Houston [1st Dist.] 2002, pet. ref’d); Hoitt

v. State, 28 S.W.3d 162, 165 (Tex. App.—Texarkana 2000), pet. dism’d, improvidently granted,

65 S.W.3d 59 (Tex. Crim. App. 2001); McCoy v. State, 932 S.W.2d 720, 723 (Tex. App.—Fort

Worth 1996, pet. ref’d).

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constitutes an accurate statement of law, it magnifies a particular fact: a police officer is a

public servant.”).

Whether appellant’s assault was committed against a public servant was a question

of fact to be resolved by the jury. See Tex. Code Crim. Proc. art. 36.13; Brown, 122 S.W.3d at

798–99. It was the responsibility of the advocates to argue or refute that the evidence supported that

element of the offense. See Kirsch, 357 S.W.3d at 652; Walters, 247 S.W.3d at 214; Brown,

122 S.W.3d at 798-99. Although the instruction did not “pluck out” any specific piece of evidence

for special attention, see, e.g., Fabela v. State, 431 S.W.3d 190, 196 (Tex. App.—Amarillo 2014,

pet. dism’d) (trial court’s instruction that deputy was peace officer—“You are instructed that

Chief Deputy Joe Orozco is a peace officer.”—when deputy’s status as peace officer was element

of offense constituted comment on evidence and was erroneous), it did improperly focus the jury on

the type of evidence that would support a finding that Officer Jones was a public servant. See

Kirsch, 357 S.W.3d at 652; Walters, 247 S.W.3d at 214; Brown, 122 S.W.3d at 802. Accordingly,

we conclude that the trial court’s inclusion of the additional sentence to the statutory definition of

“public servant” in the jury charge was error. See Kirsch, 357 S.W.3d at 651 (“With only limited

exceptions, the trial court may not include an instruction that focuses the jury’s attention on a

specific type of evidence that may support a finding of an element of an offense.”); Bartlett v. State,

270 S.W.3d 147, 152 (Tex. Crim. App. 2008) (“Even a seemingly neutral instruction may constitute

an impermissible comment on the weight of the evidence because such an instruction singles out that

particular piece of evidence for special attention.”).

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Omission of Government Definition

In her third point of error, appellant complains that the trial court’s jury charge was

erroneous because it did not include the statutory definition of “government” in the abstract portion

of the charge.

A trial court is statutorily obligated to instruct the jury on the “law applicable to the

case,” which requires that the jury be instructed on each element of the offense charged. See Tex.

Code Crim. Proc. art. 36.14; Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012)

(“Because the charge is the instrument by which the jury convicts, [it] must contain an accurate

statement of the law and must set out all the essential elements of the offense.”). The “law

applicable to the case” includes the statutory definitions that affect the meaning of the elements of

the offense. Ouellette v. State, 353 S.W.3d 868, 870 (Tex. Crim. App. 2011); Villarreal v. State,

286 S.W.3d 321, 329 (Tex. Crim. App. 2009). Thus, a trial court must communicate to the jury each

statutory definition related to the charged offense. See Villarreal, 286 S.W.3d at 329; see also

Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex. App.—Houston [14th Dist.] 2001, pet. ref’d) (“[T]he

trial court must define any legal phrase that a jury must necessarily use in properly resolving the

issues, and provide the statutory definition if available.”). The court’s duty to instruct the jury on

the “law applicable to the case” exists even when defense counsel fails to object to inclusions or

exclusions in the charge. Taylor v. State, 332 S.W.3d 483, 486 (Tex. Crim. App. 2011). The trial

court is “ultimately responsible for the accuracy of the jury charge and accompanying instructions.”

Id. at 488 (quoting Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)).

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In this case, appellant was charged with aggravated assault on a public servant. As

noted previously, the Texas Penal Code defines “public servant,” in relevant part, as “a person

elected, selected, appointed, employed, or otherwise designated as an officer, employee, or agent of

government.” See id. § 1.07(41). Again, the Penal Code defines the term “government” to mean

“(A) the state; (B) a county, municipality, or political subdivision of the state; or (C) any branch or

agency of the state, a county, municipality, or political subdivision.” See id. § 1.07(24).

Because the term “government” has been statutorily defined in the Penal Code and

that term affects the meaning of the “public servant” element of the charged assault offense, see

Ouellette, 353 S.W.3d at 870, the trial court’s failure to include the definition in the jury charge here

was error. See, e.g., Leach v. State, No. 03-13-00784-CR, 2015 WL 8607060, at *2 (Tex.

App.—Austin Dec. 9, 2015, no pet.) (mem. op., not designated for publication) (trial court’s failure

to include statutorily defined term “dating relationship” in jury charge for family-violence-assault-

by-strangulation offense was error).

Instructions Regarding Statutory Presumption

Section 22.02(c) of the Texas Penal Code provides that “[t]he actor is presumed to

have known the person assaulted was a public servant or a security officer if the person was wearing

a distinctive uniform or badge indicating the person’s employment as a public servant or status as

a security officer.” Tex. Penal Code § 22.02(c). In the jury charge, the trial court instructed the jury

on this presumption by quoting the statutory section almost verbatim, omitting the reference to status

as a security officer. In her fourth point of error, appellant contends that the court fundamentally

16

erred by failing to instruct the jury that the statutory presumption provided by section 22.02(c) of the

Penal Code is a permissive presumption.

Mandatory presumptions are unconstitutional because they relieve the State of its

constitutionally-required burden of proving every element of the offense beyond a reasonable doubt.

Garrett v. State, 220 S.W.3d 926, 930 (Tex. Crim. App. 2007); Brown, 122 S.W.3d at 799

(“Mandatory presumptions violate due process by shifting the burden of production or proof to a

criminal defendant on a critical fact or element of the offense.”). A permissive presumption, on the

other hand, allows but does not require the fact finder to find the elemental fact on proof of the

predicate fact, and places no burden on the accused to disprove the elemental fact. Garrett,

220 S.W.3d at 931 n.5; Tottenham v. State, 285 S.W.3d 19, 31 (Tex. App.—Houston [1st Dist.]

2009, pet. ref’d). Instructions pursuant to section 2.05(a)(2) of the Texas Penal Code—which require

the jury to be instructed on the permissive nature of any statutory presumption favorable to the State

and how the presumption relates to the State’s burden of proof—convert a mandatory presumption

into a permissive presumption.3 Id. at 931; Ramirez-Memije v. State, 466 S.W.3d 894, 897 (Tex.

3

Section 2.05(a)(2) of the Texas Penal Code provides:

(2) if the existence of the presumed fact is submitted to the jury, the court shall

charge the jury, in terms of the presumption and the specific element to which

it applies, as follows:

(A) that the facts giving rise to the presumption must be proven beyond

a reasonable doubt;

(B) that if such facts are proven beyond a reasonable doubt the jury may

find that the element of the offense sought to be presumed exists, but

it is not bound to so find;

(C) that even though the jury may find the existence of such element, the

state must prove beyond a reasonable doubt each of the other

elements of the offense charged; and

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App.—Houston [14th Dist.] 2015, no pet.). A jury charge containing a statutory presumption that

benefits the State must also contain the instructions required by Penal Code section 2.05(a)(2). See

Hollander v. State, 414 S.W.3d 746, 754 (Tex. Crim. App. 2013) (Cochran, J., concurring).

In the present case, the court’s jury charge did not include the instructions from

section 2.05(a)(2) of the Penal Code to explain to the jury how to implement the presumption

submitted. The trial court’s failure to include these instructions was error. See Hollander,

414 S.W.3d at 749 n.9; Ramirez-Memije, 466 S.W.3d at 897; see also Tottenham, 285 S.W.3d at 31

(“The trial court was mandated to deliver a charge setting forth the law applicable to the case, and

a section 2.05(a)(2) instruction was both statutorily and constitutionally required.”).

Harm Analysis

Having found error in the jury charge, we must next consider whether appellant was

harmed by the error. Appellant concedes that she did not preserve the complained-of jury charge

errors at trial—she did not object to the inclusion of the instruction that a police officer is a public

servant, she did not object to the omission of the statutory definition of “government” (or request its

inclusion), and she did not object to the omission of the section 2.05(a)(2) instructions concerning

the statutory presumption (or request their inclusion). Consequently, reversal is required only

if the errors resulted in egregious harm. See State v. Ambrose, — S.W.3d —, No. PD-0143-15,

(D) if the jury has a reasonable doubt as to the existence of a fact or facts

giving rise to the presumption, the presumption fails and the jury shall

not consider the presumption for any purpose.

Tex. Penal Code § 2.05(a)(2).

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2016 WL 1696455, at *5 (Tex. Crim. App. Apr. 27, 2016) (reaffirming that under precedent of Court

of Criminal Appeals “unpreserved jury-charge error does not require a new trial . . . unless the error

causes ‘egregious harm’”); Garrett, 220 S.W.3d at 932 (noting that mandatory-presumption errors

in jury charge are subject to harmless-error review, and approving appellate court’s analysis

regarding egregious harm).

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. Marshall v. State,

479 S.W.3d 840, 843 (Tex. Crim. App. 2016); Arrington v. State, 451 S.W.3d 834, 840 (Tex. Crim.

App. 2015). “Egregious harm is a ‘high and difficult standard’ to meet, and such a determination

must be ‘borne out by the trial record.’” Villarreal, 453 S.W.3d at 433 (quoting Reeves v. State,

420 S.W.3d 812, 816 (Tex. Crim. App. 2013)); see Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim.

App. 2013) (“[Egregious harm] is a difficult standard to meet and requires a showing that the

defendants were deprived of a fair and impartial trial.”). We will not reverse a conviction unless the

defendant has suffered “actual rather than theoretical harm.” Villarreal, 453 S.W.3d at 433; see

Marshall, 479 S.W.3d at 843 (“[C]ourts are required to examine the relevant portions of the entire

record to determine whether appellant suffered actual harm, as opposed to theoretical harm, as a

result of the error.”); Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) (“An egregious

harm determination must be based on a finding of actual rather than theoretical harm.”). In

examining the record to determine whether charge error has resulted in egregious harm, we consider

(1) the entirety of the jury charge, (2) the state of the evidence, including the contested issues and

19

weight of probative evidence, (3) the arguments of counsel, and (4) any other relevant information

revealed by the trial record as a whole. Villarreal, 453 S.W.3d at 433; Almanza, 686 S.W.2d at 171.

The Jury Charge

Abstract, or definitional, paragraphs in a jury charge serve as a kind of glossary to

help the jury understand the meaning of concepts and terms used in the application paragraph, which

is that portion of the jury charge that applies the pertinent penal law, abstract definitions, and general

legal principles to the particular facts and the indictment allegations. Vasquez, 389 S.W.3d

at 366; Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App. 2012); see Plata v. State,

926 S.W.2d 300, 302 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State,

953 S.W.2d 234 (Tex. Crim. App. 1997). “It is the application paragraph of the charge, not the

abstract portion, that authorizes a conviction.” Crenshaw, 378 S.W.3d at 466.

In this case, regarding the alleged aggravated assault offense, the abstract portion of

the jury charge read as follows:

A person commits the offense of aggravated assault against a public servant

if the person commits an assault and uses or exhibits a deadly weapon to a person the

actor knows is a public servant while the public servant is lawfully discharging an

official duty.

A person commits an assault if the person intentionally, knowingly or

recklessly causes bodily injury to another.

The application paragraph of the charge instructed the jury that if it found from the evidence beyond

a reasonable doubt that appellant

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did then and there intentionally, knowingly or recklessly cause bodily injury to John

Jones by striking John Jones with a motor vehicle or by placing a motor vehicle in

gear and striking John Jones with the motor vehicle, and [appellant] did then and

there use or exhibit a deadly weapon, to-wit: a motor vehicle, during the commission

of said assault, and [appellant] did then and there know that the said John Jones was

then and there a public servant, to-wit: a police officer, and that the said John Jones

was then and there lawfully discharging an official duty, to-wit: attempting to detain

[appellant] then you will find [appellant] guilty of the offense of aggravated assault

against a public servant as charged in count one of the indictment.

The language contained in this application paragraph substantially tracks the language of the relevant

subsections of section 22.02 of the Penal Code, which is the operative statute in this case, and

effectively restricted the jury’s deliberations to the allegations in the indictment. See Tex. Penal

Code § 22.02(a)(2), (b)(2)(B). Thus, the trial court committed no error with regard to the application

paragraph in the jury charge.

“Where the application paragraph correctly instructs the jury, an error in the abstract

instruction is not egregious.” Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999). Error

in the abstract portion of the charge will result in reversible error only when it constitutes “an

incorrect or misleading statement of a law that the jury must understand in order to implement the

commands of the application paragraph.” Crenshaw, 378 S.W.3d at 466 (citing Plata, 926 S.W.2d

at 302). The inclusion of a merely superfluous abstraction—one not necessary to an understanding

of concepts or terms contained in the application paragraph—“never produces reversible error in the

court’s charge because it has no effect on the jury’s ability to implement fairly and accurately the

commands of the application paragraph or paragraphs.” Plata, 926 S.W.2d at 302–03. Likewise,

the failure to give an abstract instruction, or definition, is reversible “only when such an instruction

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[or definition] is necessary to a correct or complete understanding of concepts or terms in the

application part of the charge.” Id. at 302.

In this case, even though the jury charge contained error in the abstract protion of the

charge—the addition of a superfluous abstract instruction to the definition of “public servant” and

the omission of the statutory definition of the term “government”—the balance of the charge

adequately set forth the elements of the offense and the application paragraph was legally correct in

its application of the law to the facts of the case. The trial court properly instructed the jury in both

the abstract portion and the application paragraph that to convict appellant of the assault offense

charged it must find that the aggravated assault was committed against a public servant. Thus, as

to these charge errors—the inclusion of the superfluous abstract instruction and the omission of the

statutory definition—the jury charge does not support a finding of egregious harm.

However, regarding the omitted section 2.05(a)(2) instructions concerning the law

on the statutory presumption, nothing in the jury charge informed the jury about the permissive

nature of the statutory presumption. See Tex. Penal Code § 2.05(a)(2); see, e.g., Ramirez-Memije,

466 S.W.3d at 898 (“[N]othing in the jury charge informed the jury that it was not bound to use the

presumption.”). In addition, nothing in the jury charge informed the jury of the State’s burden of

proof on the facts underlying the statutory presumption. See Tex. Penal Code § 2.05(a)(2); see , e.g.,

Hollander, 414 S.W.3d at 750 (“Nowhere did the jury charge specifically inform the jurors of the

degree of confidence to which they must be convinced of the facts underlying the presumption before

they could return a guilty verdict.”). Although the jury charge appropriately instructed the jury about

the State’s general burden to prove all the elements of the offense beyond a reasonable doubt, the

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Court of Criminal Appeals has concluded that this general instruction alone is insufficient to remedy

or ameliorate the error. See id. (“Such a general instruction fails to educate the jurors with respect

to the level of confidence they must have in the verity of the predicate facts before they may rely on

the presumption to convict.”). Accordingly, as to this charge error, the jury charge supports a finding

egregious harm. See Hollander, 414 S.W.3d at 750; Ramirez-Memije, 466 S.W.3d at 898–902.

State of the Evidence

With regard to the second factor, appellant’s entire argument concerning the state of

the evidence simply refers to her sufficiency claim in her first point of error. See Villarreal,

453 S.W.3d at 433 (setting out factors to consider when reveiwing for egregious harm). It fails to

address the state of the evidence adduced at trial.

Our review of the evidence at trial reveals that the undisputed evidence demonstrated

that Officer Jones was a public servant. He testified that he was a police officer and peace officer

employed by the City of Killeen. In addition, the evidence—both his testimony and the dash-cam

video—reflected that during his encounter with appellant Officer Jones was wearing his official

police uniform that had departmental patches on it and also had his badge displayed.

There was no contradictory evidence presented. Appellant never attempted to dispute

Officer Jones’s status as a public servant. She did not dispute the officer’s testimony about his

employment as a patrol officer with the Killeen Police Department or suggest that the video, which

clearly shows he is a police officer, was inaccurate. Appellant’s sole defense was that she did not

act voluntarily or with the requisite mental state because she had been tased; her defense was not in

any way related to Officer Jones’s status as a public servant (or lack thereof).

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Because the evidence demonstrating Officer Jones’s status as a public servant (also

the evidence supporting the predicate fact for the statutory presumption) was overwhelming and

uncontested, we conclude that the state of the evidence does not support a finding of egregious harm.

Jury Arguments

Next, we look at the final arguments presented by the State and appellant’s attorney.

See Villarreal, 453 S.W.3d at 433 (including arguments of counsel as a factor for consideration in

egregious harm analysis). During the State’s closing argument, the prosecutor commented that none

of the elements of the aggravated assault offense, with the exception of appellant’s mental state, were

in dispute. She argued that the evidence proved all of the elements of the assault offense charged,

including that John Jones was a “public servant:”

What do we know for a fact? We know John Jones suffered bodily injury on June

11th. We know that he was a peace officer. He’s a public servant. Public servant

is a police officer. And we know that he was attempting to detain the defendant on

that day. The only thing that they are going to argue is her mental state: Whether

what she did was intentional, was it knowing, or was it reckless.

It is unclear whether, with that statement, the prosecutor was referring to the superfluous abstract

instruction added to the “public servant” definition in the jury charge (“A police officer is a public

servant.”), arguing the law (that as an officer or employee of a municipality or agency of the

municipality, a city police officer qualifies as a public servant), or discussing the evidence presented

at trial (that because John Jones is a police officer for the City of Killeen, he is a public servant). In

any event, we note that this brief and minimal statement was the only reference to public servant

during jury argument. Moreover, it was not contrary to or inconsistent with the statutory

24

definitions of “public servant” or “government” and does not mention or discuss the statutory public

servant presumption.

In his closing argument, defense counsel focused entirely on the defensive

theory—that appellant’s conduct was involuntary or accidental (and therefore not intentional,

knowing, or reckless) because she had been tased—and never addressed the issue of whether

Officer Jones was a public servant.

Thus, although there was a very brief mention of Officer Jones’s status as a public

servant by the State, neither the State nor appellant argued the definition of either “public servant”

or “government” or suggested that they were anything other than as defined by the Penal Code.

Further, the parties did not mention, and certainly did not emphasize, the statutory presumption or

reinforce it at all. The State’s jury argument focused on appellant’s mental state at the time she

struck Officer Jones with the stolen car—in response to appellant’s argument, which focused entirely

on her defensive theory that she did not volitionally hit the officer. The arguments of counsel do not

support a finding of egregious harm.

Other Relevant Factors

As to the fourth factor, our review of the record has disclosed no other relevant

information that requires our consideration in the egregious harm analysis.

Conclusion Regarding Harm

Based on our review of the record in this case, we hold that no egregious harm

resulted from the complained-of errors in the jury charge. See Gelinas v. State, 398 S.W.3d 703, 710

25

(Tex. Crim. App. 2013) (reaffirming that Almanza harm analysis “is a fact specific one which should

be done on a case-by-case basis”).

The record in this case contains unquestionable evidence—including Officer Jones’s

testimony and the dash-cam video from his patrol car—that overwhelmingly established

Officer Jones’s status as a “public servant,” as that term is statutorily defined. Further, the record

clearly establishes that no dispute existed as to what constituted a public servant, nor was there any

dispute about whether the evidentiary facts sufficed to demonstrate that Office Jones, a municipal

police officer and peace officer, was a public servant.

On this record, in view of the jury charge submitted, the uncontroverted evidence

regarding Officer Jones’s status as a public servant, and the arguments of counsel, we conclude that

although the trial court erred by adding an instruction to the statutory definition of “public servant”

and by omitting the statutory definition of “government,” such errors in the jury charge did not deny

appellant a fair and impartial trial. Appellant did not suffer egregious harm as a result of these

charge errors. Accordingly, we overrule appellant’s second and third points of error.

Similarly, we find that egregious harm did not result from the omission of the section

2.05(a)(2) presumption instructions. In undertaking our review, we are mindful of Judge Cochran’s

observation in Hollander: “There is a grave likelihood that a jury charge that does not contain the

[Section] 2.05(a)(2) instructions will cause egregious harm to a defendant because of the serious

constitutional pitfalls involved in using evidentiary presumptions. Generally speaking, jury

instruction error involving presumptions that appear to be mandatory will cause the defendant

‘egregious harm’ because they violate the constitutional requirement that the State prove every

26

element of an offense beyond a reasonable doubt.” Hollander, 414 S.W.3d at 756 (Cochran, J.,

concurring). However, “[i]n an egregious-harm analysis [for the omission of the section 2.05(a)(2)

presumption instructions], the question is not simply whether, when viewed in the light most

favorable to the verdict, the jury could rationally have found predicate facts to a level of confidence

beyond a reasonable doubt. Instead, a reviewing court must evaluate the likelihood, considering the

record as a whole, that a properly instructed jury would have found the predicate facts to the requisite

level of confidence.” Hollander, 414 S.W.3d at 751. Given the overwhelming and undisputed

evidence in this case, it would not have been rational for a jury to harbor a reasonable doubt that the

State had established the predicate fact in support of the statutory presumption, i.e., that

Officer Jones was a public servant. Cf. id. at 752. Appellant did not suffer egregious harm as a

result of this charge error. Therefore, we overrule appellant’s fourth point of error.

CONCLUSION

Having concluded that the evidence is sufficient to support the jury’s verdicts of guilt

and that the complained-of errors in the jury charge did not cause appellant egregious harm, we

affirm the trial court’s judgments of conviction.

__________________________________________

Melissa Goodwin, Justice

Before Chief Justice Rose, Justices Goodwin and Bourland

Affirmed

Filed: June 10, 2016

Do Not Publish

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