Corey Javone Dorsey v. the State of Texas

TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03-19-00411-CR

Corey Javone Dorsey, Appellant

v.

The State of Texas, Appellee

FROM THE 264TH DISTRICT COURT OF BELL COUNTY

NO. 78871, THE HONORABLE PAUL L. LEPAK, JUDGE PRESIDING

MEMORANDUM OPINION

A jury convicted appellant Corey Javone Dorsey of the first-degree felony offense

of aggravated robbery, see Tex. Penal Code § 29.03(a)(2), and assessed his punishment at thirty

years’ confinement in the Texas Department of Criminal Justice (“TDCJ”). In two related

issues, appellant complains about error in the jury charge. We will affirm the trial court’s

judgment of conviction.

BACKGROUND

At approximately 3 a.m. on April 19, 2018, Darshay Johnson and a friend left

Bunny Club in Killeen, Texas, where Johnson worked as a dancer. They stopped at Mickey’s, a

convenience store, before driving to the friend’s house. The friend had entered the house when

Johnson, exiting her truck, was confronted by two men in dark clothing and long sleeves with

pistols and ski masks. At trial, Johnson testified that the men were African American and of slim

build. One of the men, wearing gloves, covered her mouth with his hand while the other put a

gun to her head. The second man then went through her truck and took her work bag, containing

her dance clothes and shoes. He pointed the gun at her head once more and ordered her to strip

naked. While she was removing her clothing, he threatened to shoot her for taking too long.

After she had undressed, he ordered her to lie on the ground, groped her buttocks, and took the

clothes she had been wearing. The two men ran off, and she heard gunshots. An officer with the

Killeen Police Department (“KPD”) testified that five spent 9mm shell casings were recovered

nearby. Johnson saw the men enter a white four-door Mercedes with tinted windows. She

testified that she thought she was going to die.

The next morning at approximately 3:15 a.m., dancer Riana Collins and two

friends got off work at the Dollhouse Club. After stopping at a 7-Eleven, Collins dropped her

friends off at their residences. While dropping off the second friend, Collins noticed a white

Mercedes pull up behind her vehicle. She made a U-turn, and the Mercedes drove off. Collins

dropped her friend off and parked up the street, texting the friend to make sure she was safe. The

Mercedes again pulled up behind her, and she saw someone running up to the passenger’s side of

her vehicle. She partially rolled down the passenger’s side window, when a second man

knocked on her driver’s side window. Collins testified that she believed the man had banged on

the window with something metal, which she assumed was a gun because of the reflection and

lighting. The man on the passenger’s side reached into her vehicle through the partially opened

window and opened her door. Both men were wearing masks; the man on the passenger’s side

pulled his down before reaching into the vehicle, but Collins was able to see his face for a couple

of seconds. She testified that he was a “lighter skin[ned]” African American, and she was

“pretty sure” he was wearing gloves. The man grabbed her work bag and purse. Collins

2

struggled with the man over the purse. Her fingers were injured in the struggle. The two men

fled with the bag and purse back to the Mercedes, which Collins noted was a newer, four-door

model. She testified that she was “pretty sure” the second man was also African American.

When shown a lineup, Collins was unable to identify the man at the passenger’s side whose face

she had briefly seen.

Detective Mayra Ayala with the KPD reviewed surveillance footage from the

parking lots of Mickey’s, the Dollhouse, and Chix Gentlemen’s Club, a third Killeen

adult-entertainment establishment, located in the same building as Bunny Club. There was no

working video from Bunny Club. Ayala testified at trial that she saw both Johnson’s truck and a

white four-door Mercedes with tinted windows, a sunroof, and a missing registration sticker—

matching the description given by Johnson—on the Mickey’s footage from April 19, 2018. No

one exited the Mercedes, and she was able to see two individuals in the vehicle: a front

passenger with lighter skin, a thin build, and dark clothing and a “thicker” driver with darker skin

and possible facial hair. Ayala testified that the passenger was staring at Johnson. Video from

Chix on the same day showed the Mercedes circling the parking lot. Ayala testified that several

characters on the license plate appeared to be recognizable. She saw the same Mercedes in the

parking lot of the Dollhouse in surveillance video from April 20, 2018. The front passenger,

who appeared to have a thin build and was wearing dark clothing, opened the door and briefly

walked to the back of the vehicle; in almost 30 minutes of footage, no one from the Mercedes

entered the club.

In the early morning of April 21, 2019, KPD officers were deployed to monitor

the parking lots of various Killeen adult-entertainment establishments in search of the Mercedes.

Detective Larry Johnson testified that at approximately 3:30 a.m., he noticed a white Mercedes

3

with tinted windows and a sunroof enter the parking lot of Club Dreams. Using binoculars, he

determined that two characters on the vehicle’s license plate matched those of the Mercedes from

the Chix surveillance footage. At around 5:00 a.m., the vehicle left the parking lot.

A short time later, Sergeant Miguel Mirabel, following the Mercedes in a marked

squad car, witnessed the vehicle commit a traffic violation and conducted a traffic stop. He

testified that as he approached the vehicle, he observed three men, two in the front and a third in

the back, and he could smell burnt marijuana. The men were detained at the rear of the vehicle,

and a search of the interior was conducted. According to the testimony of Detective Johnson, the

driver was identified as appellant, the front passenger as Se’von Gambrell, and the back

passenger as Marcus Pinkard.

Detective Odis Denton, who assisted Mirabel with the stop, testified that the man

in the front passenger’s seat, Gambrell, had an open backpack between his legs. During the

search, officers discovered a 9mm black and silver Smith & Wesson handgun with a full

magazine, as well as a second magazine, under the driver’s seat. Officers also discovered

marijuana on the passenger’s side floorboard, packaged to deliver in small bags. The backpack

contained two balaclava-style masks, one green and the other brown, and a pair of military-style

gloves. A second .40 caliber handgun with a laser sight was found in the back center console.

Marcus Pinkard testified that he knew appellant and Gambrell from the Army and

met up with appellant at a mall on April 19, 2018. Appellant told Pinkard that he was “hitting a

lick” on exotic dancers. Pinkard explained that hitting a lick means “taking something that’s not

yours.” He testified that on the night of April 20, 2018, and into the following morning, he,

appellant, and Gambrell had gone to clubs on Sixth Street in Austin, Texas. Pinkard claimed he

then fell asleep in the back of the Mercedes and only woke up when they were pulled over.

4

Electronic GPS logs from Pinkard’s employment as a truck driver showed that his truck was

not near San Marcos, Texas on the mornings of April 19th and 20th. Pinkard testified that he

was working with his truck on those days. Pinkard also testified that he was the owner of the

.40 caliber handgun found in the back console of the Mercedes.

Appellant agreed to provide a DNA sample; additional samples were obtained

from Gambrell and Pinkard. At trial, Texas Department of Public Safety (“DPS”) forensic

scientist Andrew Lopez testified to the results of DNA testing of the balaclavas, gloves, and

9mm handgun. The green balaclava contained a mixture from four individuals. Appellant was

excluded as a possible contributor, but Gambrell was not. The brown balaclava contained a

mixture from three individuals. Gambrell could not be excluded as a contributor, and the results

were inconclusive as to appellant. Lopez explained, “Inconclusive means that they do share

some markers between the known and the evidentiary but there aren’t any markers to definitely

say they are excluded or [included.] It’s in that gray area.” With respect to the handgun, the

back grip did not contain enough DNA to develop a usable profile. The left grip contained a

mixture from three individuals. Once again, Gambrell could not be excluded as a contributor,

and the results were inconclusive as to appellant. Lopez testified that it is possible to touch

something and not leave behind DNA. DNA testing could not show who handled or fired the

gun, only whose DNA is on it.

James Jeffress, another DPS forensic scientist, testified that the fired 9mm

cartridge cases recovered from the robbery of Darshay Johnson were identified as having been

fired by the Smith & Wesson handgun discovered under the seat in which appellant was sitting

following the traffic stop.

5

In the abstract portion of its jury charge, the trial court, in relevant part, defined

the offenses of aggravated robbery, robbery, and theft, and the culpable mental states for intent

and knowledge and provided an overview of the law of parties. The application paragraph

authorized the jury to convict if it found beyond a reasonable doubt that appellant:

as alleged in the indictment, did then and there while acting either individually or

as a party with another, while in the course of committing theft of property and

with intent to obtain or maintain control of said property, intentionally or

knowingly threaten or place Darshay Johnson in fear of imminent bodily injury or

death, and the defendant did then and there use or exhibit a deadly weapon.

The jury found appellant guilty of aggravated robbery. Following a sentencing

hearing, the trial court sentenced him to thirty years’ confinement in TDCJ. Appellant timely

appealed his conviction, and this appeal followed.

DISCUSSION

Deadly Weapon Instruction

In his first issue, appellant contends that the trial court erred by failing to instruct

the jury that to convict appellant of aggravated robbery with a deadly weapon, the evidence

needed to show that appellant knew that Gambrell would use or exhibit a deadly weapon,

namely, the 9mm handgun. Appellant argues that the charge should have done so in two ways:

1) tailoring the culpable mental state of knowledge to the deadly weapon element of the offense1

and, 2) in the application paragraph, requiring the jury to find that “the defendant did then and

1

Appellant suggests that such an instruction could read as follows: “A person acts with

knowledge that another is using or exhibiting a deadly weapon when he is aware that the other is

using or exhibiting the weapon.” For the sake of clarity and cohesion, we address this facet of

appellant’s argument when considering his second issue, concerning the tailoring of culpable

mental states, below.

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there personally use or exhibit a deadly weapon, to wit: a firearm, or knew that another person

would use or exhibit a deadly weapon, to wit: a firearm.”

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

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

Arteaga v. State, 521 S.W.3d 329, 333 (Tex. Crim. App. 2017); 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. Marshall v. State, 479 S.W.3d 840, 843

(Tex. Crim. App. 2016); see Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g) (setting forth procedure for appellate review of claim of jury-charge error). If the

jury-charge error has not been properly preserved by an objection or request for instruction, see

Tex. Code Crim. Proc. arts. 36.14, .15, as it was not here, reversal is required only upon a

showing of “egregious harm,” “which occurs when the error created such harm that the appellant

was deprived of a fair and impartial trial.” Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim.

App. 2019). Appellant must have suffered actual, and not merely theoretical, harm. Id.

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

the case.” See Tex. Code Crim. Proc. art. 36.14; Mendez v. State, 545 S.W.3d 548, 552 (Tex.

Crim. App. 2018). Each statutory definition that affects the meaning of an element of the

offense must be communicated to the jury. Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim.

App. 2009); Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986). The jury charge

should tell the jury what law applies and how it applies to the case. Delgado v. State,

235 S.W.3d 244, 249 (Tex. Crim. App. 2007). The trial 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. Mendez, 545 S.W.3d at 552; Vega v. State, 394 S.W.3d 514, 519 (Tex.

7

Crim. App. 2013). The trial court is “ultimately responsible for the accuracy of the jury charge

and accompanying instructions.” Mendez, 545 S.W.3d at 552 (quoting Delgado, 235 S.W.3d at

249); Taylor v. State, 332 S.W.3d 483, 488 (Tex. Crim. App. 2011). When reviewing for error,

courts must examine a charge “as a whole instead of a series of isolated and unrelated

statements.” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012) (internal quotation

marks omitted). Jury charges “which fail to apply the law to the facts adduced at trial” are

erroneous. Gray v. State, 152 S.W.3d 125, 128 (Tex. Crim. App. 2004).

The Court of Criminal Appeals has held that an indictment for aggravated robbery

need not allege a culpable mental state as to the aggravating element, namely, use or exhibition

of a deadly weapon. See Bilbrey v. State, 594 S.W.2d 754 (Tex. Crim. App. [Panel Op.] 1980).

“The required elements of an indictment for aggravated robbery without actual injury,” the

Court explained:

are that 1) a person 2) in the course of committing theft 3) with the intent to

obtain or maintain control of property 4) intentionally or knowingly 5) threatens

another with, or places another in fear of 6) imminent bodily injury or death and

7) uses or exhibits 8) a deadly weapon.

Id. at 759.2 The Second Court of Appeals has likewise explained that “the deadly weapon

element of an aggravated robbery charge does not carry a separate culpable mental state, nor is it

required to carry one. Rather, each offense is required to have a culpable mental state, not each

element of an offense.” Chandler v. State, 855 S.W.2d 38, 41 (Tex. App.—Fort Worth 1993, no

pet.). As such, it necessarily follows that a trial court need not instruct the jury that it find such a

2

Elsewhere, the Court similarly notes, “The Legislature in defining the offense expressly

placed two requisite mental states into the language of the statute: the offender must act with

intent to obtain and maintain control over property, and his threatening or placing the victim in

fear must be intentional or knowing.” Ex parte Santellana, 606 S.W.2d 331, 333 (Tex. Crim.

App. 1980).

8

culpable mental state in order to find the defendant guilty of the offense beyond a reasonable

doubt. See Crenshaw v. State, 378 S.W.3d 460, 465 (Tex. Crim. App. 2012) (“The State is

bound by the allegations in the charging instrument.”); see also Tex. Code Crim Proc. art. 36.14

(requiring that the judge deliver a charge setting forth “the law applicable to the case”).

Similarly, the Court of Criminal Appeals in Vasquez v. State concluded that a

general reference to the law of parties in the application paragraph of the jury charge is

sufficient, absent a narrowing request by the defendant, to incorporate the definition of the law

from the abstract portion of the charge. 389 S.W.3d at 368. Here, the application paragraph

included an instruction authorizing the jury to convict appellant if it found beyond a reasonable

doubt that he, “while acting either individually or as a party with another,” committed aggravated

robbery and used or exhibited a deadly weapon. Such an instruction, coupled with the more

complete statement of the law of parties in the abstract portion of the charge, is all the specificity

that is required. The jury was required, as a matter of law, to find appellant, acting alone or

as a party, used or exhibited a deadly weapon before it could convict. See Butler v. State,

928 S.W.2d 286, 288 (Tex. App.—Fort Worth 1996, pet. ref’d) (“[A] second culpable mental

state is not required to be proved in connection with the aggravating element of the use of a

deadly weapon.”).3

3

Relatedly, in Davis v. State, the defendant requested an instruction that the jury find he

knew of an accomplice’s intent to rob the victim before it could find him guilty of aggravated

robbery. 651 S.W.2d 787, 792 (Tex. Crim. App. 1983). The Court of Criminal Appeals,

emphasizing that the jury charge set forth the law of parties, concluded: “The court’s charge

tracked the language of the Penal Code, Secs. 7.01 and 7.02, V.T.P.C. When a refused charge is

adequately covered by the charge given, no harm is shown. We find no harm and overrule the

ground of error.” Id. (internal citation omitted).

9

Here, appellant grounds his allegation of error with respect to the deadly weapon

instruction in cases concerning sufficiency of the evidence and a trial court’s authority to enter

an affirmative deadly weapon finding in the absence of an affirmative finding by the jury. See

e.g., Stephens v. State, 717 S.W.2d 338, 340 (Tex. Crim. App. 1986); Boston v. State,

373 S.W.3d 832, 839 (Tex. App.—Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013);

Wyatt v. State, 367 S.W.3d 337, 340–41 (Tex. App.—Houston [14th Dist.] 2012, pet. ref’d,

untimely filed); Sarmiento v. State, 93 S.W.3d 566, 570 (Tex. App.—Houston [14th Dist.] 2002,

pet. ref’d). However, the requirement that the State prove a defendant knew a deadly weapon

would be used in the commission of an offense is distinct from a purported requirement that the

charge include an instruction necessitating the jury make such a finding. Indeed, rather than

supporting appellant’s contention, the cited cases instead undermine the rationale for the

requested instruction.

In Sarmiento, for example, the Fourteenth Court of Appeals held that the trial

court’s deadly weapon finding was proper even in the absence of an affirmative finding by the

jury that the defendant used a weapon or knew a weapon would be used. 93 S.W.3d at 570. The

court acknowledged that while it is perhaps “conceivable” that a deadly weapon could be used

without the “knowledge, assent, or approval of an accomplice,” when use or exhibition is an

element of the offense, as alleged in the indictment, the guilty verdict itself satisfies the

necessary finding. As the court explained:

[W]here the use of a deadly weapon is an element of the offense, the State

automatically carries the burden of proving the defendant knew a weapon would

be used or exhibited in the commission of the offense. In other words, even as a

party, a defendant cannot be convicted unless his participation is accompanied

with the intent “to promote or assist the commission of the offense.” The offense

here was aggravated robbery, and the use of a deadly weapon was alleged in the

10

indictment as an element of the offense. Thus, before jurors were authorized to

find [defendant] guilty, even as a party, they first had to believe beyond a

reasonable doubt that [he] knew a deadly weapon would be used in the

commission of the offense. By its verdict, the jury necessarily made the factual

finding to support the entry of an affirmative finding of the use or exhibition of a

deadly weapon upon the judgment.

Id. (internal citations omitted). Similarly, the First Court of Appeals has concluded, “By finding

the [defendant] guilty as alleged in the indictment, the jury found that [the defendant] intended

that a deadly weapon would be used during the course of the aggravated robbery. By finding this

intent, the jury necessarily found that [the defendant] knew a deadly weapon would be used.”

Harris v. State, No. 01-01-00513-CR, 2003 WL 360264, at *2 (Tex. App.—Houston [1st Dist.]

Feb. 20, 2003, pet. ref’d) (mem. op., not designated for publication).4

The Fifth Court of Appeals has made clear the importance of Sarmiento’s

reasoning to the present case. As the court explains, “under the reasoning of Sarmiento . . . , the

charge imposed the same restriction [the defendant] contends the trial court ‘failed’ to impose—

that the jury could not find [him] guilty as a party unless it found beyond a reasonable doubt that

[the defendant] knew [his accomplice] was armed.” Ghanbari v. State, No. 05-17-00257-CR

2019 WL 1649455, at *16 (Tex. App.—Dallas Apr. 17, 2019, pet ref’d) (mem. op., not

designated for publication). Here, the indictment alleged, in relevant part, that appellant “while

acting individually and as a party with another . . . did then and there use or exhibit a deadly

weapon, to wit: a firearm.” Consequently, the jury, by finding appellant guilty, necessarily

4

Insomuch as appellant’s requested instruction requires that the jury find he

“personally” used or exhibited a deadly weapon, “[e]vidence that a defendant personally used or

exhibited a deadly weapon is not required for conviction when the defendant is prosecuted as a

party.” Bradley v. State, No. 14-08-00038-CR, 2008 WL 4647289, at *3 (Tex. App.—Houston

[14th Dist.] Oct. 21, 2008, pet. ref’d) (mem. op., not designated for publication)

11

found that he knew a deadly weapon would be used. Any failure to instruct the jury to make

such a finding in order to convict was not erroneous.

Lastly, the Court of Criminal Appeals has stated in dictum that “in order to be

entitled to a charge requiring the jury to find he knew of a companion’s intent to use a deadly

weapon . . . in order for it to convict him of aggravated robbery,” a defendant would at least have

to have refuted the evidence “that the agreement to rob had contemplated use of a

deadly weapon, the aggravating factor.” Mayfield v. State, 716 S.W.2d 509, 516 & n.5 (Tex.

Crim. App. 1986), overruled on other grounds by Solomon v. State, 49 S.W.3d 356 (Tex. Crim.

App. 2001).

In the present case, Appellant’s efforts at refutation were largely limited to

attempting to elicit testimony on cross-examination that only one of the robbers used a weapon

and emphasizing that the results of the DNA testing were inconclusive as to appellant.

Conversely, the evidence tending to prove appellant’s use or knowledge was extensive.

Darshay Johnson’s testimony suggested both robbers may have been armed. She stated that the

men had “guns” and “pistols.” When asked on cross-examination if only one man had a weapon,

she responded, “I don’t recall.” Regardless, during the robbery, the man who put his hand over

Johnson’s mouth continued to restrain her despite the other’s use of a weapon and did so

throughout the course of the robbery. The next night, both men participated in the robbery of

Riana Collins, who testified that she believed at least one of the men was armed.5 Moreover,

Collins testified that the armed man was next to the driver’s side window, while the man by the

5

We have previously held that the use of a weapon in multiple robberies during a crime

spree supports a finding that one robber was aware of the other’s gun and knew he would be

using or exhibiting it during the robbery. Boston v. State, 373 S.W.3d 832, 839 (Tex. App.—

Austin 2012), aff’d, 410 S.W.3d 321 (Tex. Crim. App. 2013).

12

passenger’s side was of a “lighter skin complexion.” Multiple references were made during the

trial to Gambrell’s “lighter skin” and appellant’s “darker skin.” Collins’s testimony suggests that

the armed individual was in fact appellant. The handgun used in the Johnson robbery was found

underneath appellant’s seat when he and Gambrell were stopped. The State’s DNA expert

testified that while Gambrell’s DNA was found on the left grip of the gun, the DNA was a

mixture of three individuals, and results were inconclusive as to appellant. He also testified that

it is possible to touch something and not leave behind DNA. Additional evidence showed that at

least one of the robbers used gloves. In the face of all this evidence, appellant’s efforts were

insufficient to refute the evidence that he used or knew of Gambrell’s use of a gun.

Consequently, appellant would not have been entitled to his requested instruction. The court’s

failure to include the instruction was therefore not error. When no error exists, the inquiry ends.

See Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App. 2015). For the foregoing reasons, we

overrule appellant’s first issue.

Tailoring Culpable Mental States

In his second issue, appellant contends that the trial court erred by failing to tailor

the definitions of the culpable mental states to the elements of the offense to which they applied.

Although appellant concedes that the trial court provided complete definitions for “intentionally”

and “knowingly” in the abstract portion of the jury charge, he argues that the court failed to link

the elements of aggravated robbery with their respective culpable mental states. Appellant

alleges that he suffered egregious harm as a result of the court’s error. Because we disagree and

conclude that he was not egregiously harmed by any error, we need not decide whether the court

erred in its charge.

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The Penal Code delineates three “conduct elements” that can be involved in an

offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances

surrounding the conduct. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989); see

Robinson v. State, 466 S.W.3d 166, 170 (Tex. Crim. App. 2015) (explaining “three different

categories of offenses based on the offense-defining statute’s gravamen, or focus: ‘result of

conduct,’ ‘nature of conduct,’ or ‘circumstances of conduct’”); see Tex. Penal Code § 6.03

(defining culpable mental states). An offense may contain any one or more of these “conduct

elements,” which alone or in combination form the overall behavior that the Legislature has

intended to criminalize, and it is those essential “conduct elements” to which a culpable mental

state must apply. McQueen, 781 S.W.2d at 603. Thus, the statutory definitions of the culpable

mental states in a jury charge should be tailored to the conduct elements of the offense. Price,

457 S.W.3d at 441; Cook v. State, 884 S.W.2d 485, 487–88 (Tex. Crim. App. 1994).

As discussed above, if we find that error exists, we must analyze the error for

harm. Arteaga, 521 S.W.3d at 333. Because appellant did not properly preserve his complaint

by objecting at trial, a reversal will be granted only if error is present in the charge and if such

error caused “egregious harm.” Chambers, 580 S.W.3d at 154.

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. Arteaga,

521 S.W.3d at 338; Marshall, 479 S.W.3d at 843; 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 v. State, 453 S.W.3d 429, 433

(Tex. Crim. App. 2015) (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

14

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 jury-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 weight of probative evidence; (3) the arguments of counsel;

and (4) any other relevant information revealed by the trial record as a whole. Arteaga,

521 S.W.3d at 338; Marshall, 479 S.W.3d at 843; Villarreal, 453 S.W.3d at 433; Almanza,

686 S.W.2d at 171. The analysis is “fact specific and is done on a ‘case-by-case basis.’”

Arrington, 451 S.W.3d at 840 (quoting Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim.

App. 2013)).

Here, the State concedes the charge erroneously failed to limit the culpable mental

states to the appropriate conduct elements of the offense of aggravated robbery. However, the

State asserts that the record does not establish egregious harm. Assuming without deciding that

the charge is erroneous, we agree that the error did not egregiously harm appellant.

Entirety of the Jury Charge

When the error involves a misstatement of the required culpable mental states, we

“may consider the degree, if any, to which the culpable mental states were limited by the

15

application portions of the jury charge.” Hughes v. State, 897 S.W.2d 285, 296 (Tex. Crim. App.

1994); Cook, 884 S.W.2d at 492 n.6. In this case, even if the trial court gave incorrect,

non-tailored definitions of the culpable mental states in the abstract portion of the charge, the

court’s instruction in the application paragraph properly applied the law to the factual context.

The trial court instructed the jury as follows:

Now bearing in mind the foregoing instructions, if you believe from the evidence

beyond a reasonable doubt, that the defendant, Corey Javon Dorsey, on or about

the 19th day of April, 2018, in the County of Bell and State of Texas, as alleged in

the indictment, did then and there while acting either individually or as a party

with another, while in the course of committing theft of property and with intent

to obtain or maintain control of said property, intentionally or knowingly threaten

or place Darshay Johnson in fear of imminent bodily injury or death, and the

defendant did then and there use or exhibit a deadly weapon, to wit: a firearm,

you will find the defendant “Guilty” of the offense of Aggravated Robbery and so

say by your verdict, but if you do not so believe, or if you have a reasonable doubt

thereof, you will acquit the defendant and say by your verdict “Not Guilty.”

Thus, the jury was instructed that it could only convict appellant of aggravated robbery if it

found that he, acting alone or as a party, had “intentionally or knowingly” threatened or placed

Johnson in fear of imminent bodily injury by using or exhibit a deadly weapon. We conclude

that the application paragraph appropriately required the jury to find that appellant’s threatening

Johnson or placing her in fear must have been done “intentionally” or “knowingly.”

The Court of Criminal Appeals has failed to find harm in near-identical

circumstances. In Robinson v. State, the Court addressed a charge instructing the jury:

[I]f you believe from the evidence beyond a reasonable doubt that Roxanne

Michalick was the owner of the property, and that the defendant, Charles Chuck

Robinson, in Harris County, on or about February 22, 1977 while in the course of

committing theft from the said Roxanne Michalick, and with intent to obtain and

maintain control of said property, intentionally and knowingly threatened or

placed the said owner in fear of bodily injury or death and used or exhibited

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a deadly weapon, to wit, a pistol, you will find the defendant guilty of

aggravated robbery.

596 S.W.2d 130, 131–32, 134 (Tex. Crim. App. 1980). The Court, enumerating the “essential

ingredients” of aggravated robbery, concluded, “the culpable mental state for the theft offense

committed or attempted, is likewise not an essential element of the offense of aggravated

robbery, the culpable mental state for which was charged in the instant case as ‘knowingly and

intentionally.’” Id. at 134.6 Accordingly, as the application paragraph of the jury charge in

appellant’s case sufficiently clarified the conduct element to which each culpable mental state

attached, we conclude that a consideration of the entire jury charge weighs against a finding of

egregious harm.

State of the Evidence

The second factor requires us to review the state of the evidence, including the

contested issues and weight of probative evidence. Villarreal, 453 S.W.3d at 433. Under this

factor, “we look to the state of the evidence to determine whether the evidence made it more or

less likely that the jury charge caused appellant actual harm.” Arrington, 451 S.W.3d at 841.

6

Similarly, in Lott v. State, the Fifth Court of Appeals found that the trial court

committed error by failing to limit the definitions in the jury charge to the conduct elements to

which they applied but concluded that the culpable mental states of “knowingly” and

“intentionally” were sufficiently limited to their relevant conduct element by the following

statement in the application paragraph of the charge: “[Appellant] ‘intentionally and

knowingly’ placing Castro, a witness, in fear of imminent bodily injury or death by using or

exhibiting a deadly weapon, a knife.” No. 05-00-01999-CR, 2002 WL 523526, at *4 (Tex.

App.—Dallas Apr. 9, 2002, no pet.) (mem. op., not designated for publication) (internal citations

omitted); see also Green v. State, No. 05-01-00653-CR, 2002 WL 1822437, at *5 (Tex. App.—

Dallas Aug. 9, 2002, no pet.) (mem. op., not designated for publication) (culpable mental states

sufficiently limited by statement that defendant committed robberies, by “intentionally and

knowingly threaten[ing] or plac[ing] the said complainant in fear of imminent bodily injury or

death, and the defendant, either acting alone or as a party, did then and there use or exhibit a

deadly weapon . . . .’”) While the holdings from our sister courts are non-precedential, we find

them useful for illustrative purposes.

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Where an appellant’s mental state was not an issue in controversy during the trial

or at closing arguments, reviewing courts—including this Court—have been unwilling to find

egregious harm based upon a trial court’s failure to tailor culpable mental states to elements of an

offense. Herrera v. State, 527 S.W.3d 675, 680 (Tex. App.—Houston [14th Dist.] 2017, pet.

ref’d) (“The issue of [defendant]’s mental state was not at all a focus of the trial or the closing

arguments.”); Ash v. State, 930 S.W.2d 192, 195 (Tex. App.—Dallas 1996, no pet.) (holding that

similar jury-charge error was not egregiously harmful in part because only issues that were

seriously contested at trial had nothing to do with defendant’s mental state); Sheppard v. State,

No. 03-00-00220-CR, 2000 WL 1752763, at *2 (Tex. App.—Austin Nov. 30, 2000, no pet.)

(mem. op., not designated for publication) (“Because appellant’s commission of the ‘conduct

elements’ was not disputed, the court’s failure to tailor a separate and distinct definition of the

culpable mental state applicable to each element, if error, did not deny appellant a fair

and impartial trial.”); Lott v. State, No. 05-00-01999-CR, 2002 WL 523526, at *4 (Tex. App.—

Dallas Apr. 9, 2002, no pet.) (mem. op., not designated for publication) (“Mental states and the

conduct element to which they apply were simply not contested. Based on our examination of

the record, it is difficult to see how the trial court’s error could be considered harmful, much less

egregiously so.”).

The only contested issue at trial was the identity of the robbers. As the defense

summarized in closing, “What we—what we do know beyond a reasonable doubt is that the State

has not proved their case, that the person who was involved in that robbery along with

Mr. Gambrell evidently was my client.” The State agreed, “Maybe it wasn’t Corey Dorsey.

That’s all they have.” Appellant never specifically asserted that he lacked the requisite culpable

mental state to commit the charged offenses, nor did any evidence raise this inference. He

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likewise fails to show that the jury was or could have been confused by the complained-of charge

defect. Consequently, after reviewing the evidence and the contested issues at trial, we conclude

that the state of the evidence weighs against a finding of egregious harm.

Arguments of Counsel

Under this factor, we consider whether any statements made during the trial by

the prosecutor, the defense counsel, or the trial court may have exacerbated or ameliorated the

error in the jury charge. Arrington, 451 S.W.3d at 844.

Appellant alleges that under this factor, he was harmed because the State

“referenced the culpable mental states and the complainant Johnson’s fear and was able to rely

on the omissions from the charge to gloss over this requirement without specifically addressing

Dorsey’s intent or knowledge.”

As discussed previously, the culpable mental states were not a contested issue at

trial. As the prosecution framed it:

[E]verything there [the jury charge] is proven and not even in dispute. Go two

through six, not even in dispute. The date, the location, the victim, what these

two did, what the result was. That they were acting as parties. You can check

those off. The only one I even heard, the only one they could even have a leg to

stand on is, just maybe it wasn’t my guy.

Indeed, defense counsel seemingly agreed, conceding, “We know beyond a reasonable doubt that

on April 19, 2018 Miss Johnson was robbed at gunpoint by two African-American males.” The

prosecution briefly touched on the element of mens rea, arguing, “Intentionally, knowingly,

threaten or place her in fear of imminent bodily injury or death. She told you she thought she

might die. She was in fear of death or serious bodily injury from being shot.” However, if

anything, “[t]he prosecutor’s argument directing the jury to the respective required culpable

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mental states for the separate conduct elements ameliorated the error in the charge.”

Faulkenberry v. State, No. 03-18-00265-CR, 2018 WL 3625791, at *6 (Tex. App.—Austin

July 31, 2018, pet. ref’d) (mem. op., not designated for publication). Defense counsel neither

directly addressed the required culpable mental states for the conduct elements nor referenced

the definitions in the charge. Id. Similarly, the State did not highlight or rely on the complained-

of jury charge definitions but instead focused almost exclusively on appellant’s identity. We

conclude that the arguments of counsel weigh against a finding of egregious harm.

Other Information in the Record

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

After reviewing the record and considering the relevant factors, we hold that the

trial court’s instructions defining the culpable mental states in the abstract portion of the jury

charge, if erroneous, did not egregiously harm appellant. We overrule appellant’s second issue.

CONCLUSION

Having overruled both of appellant’s issues, we affirm the trial court’s judgment

of conviction.

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__________________________________________

Melissa Goodwin, Justice

Before Justices Goodwin, Kelly, and Smith

Affirmed

Filed: June 17, 2021

Do Not Publish

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