Opinion issued October 4, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00728-CR ——————————— ANGEL ALEJANDRO CARDENAS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1313708
MEMORANDUM OPINION
A jury found appellant, Angel Alejandro Cardenas, guilty of theft of
property valued of under $1,500-third offender, assessed punishment at two years’
confinement, and assessed a fine of $2,500. See TEX. PENAL CODE ANN. § 31.03 (Vernon Supp. 2011). Appellant contends the application paragraph of the jury
charge resulted in an egregious harm because the term “unlawfully” did not
immediately precede the term “appropriate” as does in the penal statute. We
affirm.
BACKGROUND
At about 8 a.m. Saturday, January 15, 2011, Charles Wayne Carter drove by
his business property on his way to the gas station to make sure the gate was
closed. As Carter was leaving the gas station, he noticed two trucks and three
unknown men enter his gated property, so he called the police. Officer Martinez
responded to the call and arrived shortly thereafter.
When Officer Martinez arrived, he met with Carter and noticed a
combination lock on the closed gate. Carter testified that he used a key lock on the
gate, not a combination lock. Carter also told Officer Martinez that he had not
given anyone permission to enter his property and load up the tractors.
As Officer Martinez was waiting for other officers to arrive at the property,
he walked towards the back of the property and saw a passenger sitting in one
truck and two men walking around the trailer with a tractor loaded on it. He took
all three men into custody. Officer Martinez identified appellant as one of the three
men he arrested.
2 Appellant told Officer Martinez that he met an unknown man at another
scrap metal place and was told to enter Carter’s business property and load the
tractor in exchange for $150. According to appellant, the unknown man was the
one who removed the lock from the gate. Appellant also told Officer Martinez he
intended to sell the tractors for scrap and gave no information about the unknown
man, except how appellant met the man at another scrap metal place.
CHARGE ERROR
In appellant’s sole point of error, he argues that the jury charge was
erroneous because the application paragraph allowed the jury to return a guilty
verdict without first determining whether appellant “unlawfully appropriated”
property. The application paragraph of the jury charge in this case provided in
part:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 15th day of January, 2011, in Harris County, Texas, the defendant, Angel Alejandro Cardenas, did then and there unlawfully, commit an offense hereafter styled the primary offense in that he did appropriate by acquiring or otherwise exercising control over property, namely, tractor, owned by Charles Carter, of the value of under one thousand five hundred dollars, with the intent to deprive Charles Carter of the property . . . then you will find the defendant guilty of theft of property of the value of under one thousand five hundred dollars-third offender, as charged in the indictment.
3 Applicable Law and Standard of Review
The Texas Code of Criminal Procedure requires the jury charge to be “a
written charge distinctly 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 his charge calculated to arouse the
sympathy or excite the passions of the jury.” TEX. CODE CRIM. PROC. ANN. art.
36.14 (Vernon 2007). A jury charge is adequate if it “contains an application
paragraph that authorizes a conviction under conditions specified by other
paragraphs of the jury charge to which the application paragraph necessarily and
unambiguously refers, or contains some logically consistent combination of such
paragraphs.” Wingo v. State, 143 S.W.3d 178, 190 (Tex. App.—San Antonio 2004,
aff’d, 189 S.W.3d 270 (Tex. Crim. App. 2006).
A claim of jury charge error is first reviewed (1) for error and then (2) for
harm to determine if the error is reversible. Saldana v. State, 287 S.W.3d 43, 52
(Tex. App.—Corpus Christi 2008, pet. ref’d); TEX. CODE CRIM. PROC. ANN. art.
36.19 (Vernon 2006). To reverse a jury charge error, there must be some harm to
the appellant if the error was brought to the trial court’s attention; however,
“unobjected-to error calls for reversal only if it was so egregious as to deprive the
appellant of a fair and impartial trial.” Holland v. State, 249 S.W.3d 705, 709 (Tex.
App.—Beaumont 2008, no pet.). An egregious harm is defined to be the type and
4 level of harm that affects the very basis of the case, deprives the defendant of a
valuable right, or vitally affects a defensive theory. Allen v. State, 253 S.W.3d
260, 264 (Tex. Crim. App. 2008). In determining whether harm is egregious, the
degree of harm must be assessed in light of (1) the entire jury charge; (2) the state
of the evidence; and (3) the argument of counsel and any other relevant
information revealed by the record of the trial as a whole. Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985).
Error Analysis
The purpose of a jury charge is to “instruct the jury on the law applicable to
the case.” Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). Since the
charge is how the jury convicts, the charge “must contain an accurate statement of
the law and must set out all the essential elements of the offense.” Id. Additionally,
abstract paragraphs are a glossary “to help the jury understand the meaning of
concepts and terms used in the application paragraphs of the charge.” 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). Moreover, when
reviewing a charge for error, the court must examine the charge as a whole.
Dinkins, 894 S.W.2d at 339.
Appellant here contends the application paragraph required only that the jury
find that he appropriated property, instead of requiring a finding that he unlawfully
5 appropriated property. However, the offense of theft of property is otherwise
defined in the jury charge as follows: “A person commits the offense of theft if he
unlawfully appropriates property with intent to deprive the owner of property.” See
TEX. PENAL CODE ANN. § 31.03(a) (Vernon 2011). Moreover, the jury charge also
defined “appropriation” as unlawful “if it is without the owner’s effective
consent.” See TEX. PENAL CODE ANN. § 31.03(b) (Vernon Supp. 2011).
Additionally, the application paragraph actually uses the terms “unlawful” and
“appropriate” in the same sentence. The jury charge taken as a whole and using
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Opinion issued October 4, 2012.
In The
Court of Appeals For The
First District of Texas ———————————— NO. 01-11-00728-CR ——————————— ANGEL ALEJANDRO CARDENAS, Appellant V. THE STATE OF TEXAS, Appellee
On Appeal from the 248th District Court Harris County, Texas Trial Court Case No. 1313708
MEMORANDUM OPINION
A jury found appellant, Angel Alejandro Cardenas, guilty of theft of
property valued of under $1,500-third offender, assessed punishment at two years’
confinement, and assessed a fine of $2,500. See TEX. PENAL CODE ANN. § 31.03 (Vernon Supp. 2011). Appellant contends the application paragraph of the jury
charge resulted in an egregious harm because the term “unlawfully” did not
immediately precede the term “appropriate” as does in the penal statute. We
affirm.
BACKGROUND
At about 8 a.m. Saturday, January 15, 2011, Charles Wayne Carter drove by
his business property on his way to the gas station to make sure the gate was
closed. As Carter was leaving the gas station, he noticed two trucks and three
unknown men enter his gated property, so he called the police. Officer Martinez
responded to the call and arrived shortly thereafter.
When Officer Martinez arrived, he met with Carter and noticed a
combination lock on the closed gate. Carter testified that he used a key lock on the
gate, not a combination lock. Carter also told Officer Martinez that he had not
given anyone permission to enter his property and load up the tractors.
As Officer Martinez was waiting for other officers to arrive at the property,
he walked towards the back of the property and saw a passenger sitting in one
truck and two men walking around the trailer with a tractor loaded on it. He took
all three men into custody. Officer Martinez identified appellant as one of the three
men he arrested.
2 Appellant told Officer Martinez that he met an unknown man at another
scrap metal place and was told to enter Carter’s business property and load the
tractor in exchange for $150. According to appellant, the unknown man was the
one who removed the lock from the gate. Appellant also told Officer Martinez he
intended to sell the tractors for scrap and gave no information about the unknown
man, except how appellant met the man at another scrap metal place.
CHARGE ERROR
In appellant’s sole point of error, he argues that the jury charge was
erroneous because the application paragraph allowed the jury to return a guilty
verdict without first determining whether appellant “unlawfully appropriated”
property. The application paragraph of the jury charge in this case provided in
part:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 15th day of January, 2011, in Harris County, Texas, the defendant, Angel Alejandro Cardenas, did then and there unlawfully, commit an offense hereafter styled the primary offense in that he did appropriate by acquiring or otherwise exercising control over property, namely, tractor, owned by Charles Carter, of the value of under one thousand five hundred dollars, with the intent to deprive Charles Carter of the property . . . then you will find the defendant guilty of theft of property of the value of under one thousand five hundred dollars-third offender, as charged in the indictment.
3 Applicable Law and Standard of Review
The Texas Code of Criminal Procedure requires the jury charge to be “a
written charge distinctly 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 his charge calculated to arouse the
sympathy or excite the passions of the jury.” TEX. CODE CRIM. PROC. ANN. art.
36.14 (Vernon 2007). A jury charge is adequate if it “contains an application
paragraph that authorizes a conviction under conditions specified by other
paragraphs of the jury charge to which the application paragraph necessarily and
unambiguously refers, or contains some logically consistent combination of such
paragraphs.” Wingo v. State, 143 S.W.3d 178, 190 (Tex. App.—San Antonio 2004,
aff’d, 189 S.W.3d 270 (Tex. Crim. App. 2006).
A claim of jury charge error is first reviewed (1) for error and then (2) for
harm to determine if the error is reversible. Saldana v. State, 287 S.W.3d 43, 52
(Tex. App.—Corpus Christi 2008, pet. ref’d); TEX. CODE CRIM. PROC. ANN. art.
36.19 (Vernon 2006). To reverse a jury charge error, there must be some harm to
the appellant if the error was brought to the trial court’s attention; however,
“unobjected-to error calls for reversal only if it was so egregious as to deprive the
appellant of a fair and impartial trial.” Holland v. State, 249 S.W.3d 705, 709 (Tex.
App.—Beaumont 2008, no pet.). An egregious harm is defined to be the type and
4 level of harm that affects the very basis of the case, deprives the defendant of a
valuable right, or vitally affects a defensive theory. Allen v. State, 253 S.W.3d
260, 264 (Tex. Crim. App. 2008). In determining whether harm is egregious, the
degree of harm must be assessed in light of (1) the entire jury charge; (2) the state
of the evidence; and (3) the argument of counsel and any other relevant
information revealed by the record of the trial as a whole. Almanza v. State, 686
S.W.2d 157, 171 (Tex. Crim. App. 1985).
Error Analysis
The purpose of a jury charge is to “instruct the jury on the law applicable to
the case.” Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). Since the
charge is how the jury convicts, the charge “must contain an accurate statement of
the law and must set out all the essential elements of the offense.” Id. Additionally,
abstract paragraphs are a glossary “to help the jury understand the meaning of
concepts and terms used in the application paragraphs of the charge.” 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). Moreover, when
reviewing a charge for error, the court must examine the charge as a whole.
Dinkins, 894 S.W.2d at 339.
Appellant here contends the application paragraph required only that the jury
find that he appropriated property, instead of requiring a finding that he unlawfully
5 appropriated property. However, the offense of theft of property is otherwise
defined in the jury charge as follows: “A person commits the offense of theft if he
unlawfully appropriates property with intent to deprive the owner of property.” See
TEX. PENAL CODE ANN. § 31.03(a) (Vernon 2011). Moreover, the jury charge also
defined “appropriation” as unlawful “if it is without the owner’s effective
consent.” See TEX. PENAL CODE ANN. § 31.03(b) (Vernon Supp. 2011).
Additionally, the application paragraph actually uses the terms “unlawful” and
“appropriate” in the same sentence. The jury charge taken as a whole and using
the abstract portions of the charge as a glossary, defines and applies the definition
of theft to the facts of the case, including the terms “unlawfully” and “appropriate.”
See Plata, 926 S.W.2d at 302.
In a similar case, the indictment alleged the appellant did “unlawfully
commit an offense hereafter styled the primary offense in that he did appropriate. .
. ” and this Court held the language of the indictment was sufficient to allege the
appellant unlawfully appropriated property. Lyles v. State, No. 01-92-00817-CR,
1993 WL 143375, at *3 (Tex. App.—Houston [1st Dist.] May 6, 1993, writ ref’d)
(not designated for publication). The application paragraph of the present case has
similar language to the indictment in Lyles; taken as a whole, it adequately
instructed the jury. As the court in Mouton v. State stated, “the jury instructions
are sufficient if ‘theft’ is either defined in the abstract portion of the instructions, or
6 the essential elements of ‘theft’ are set out in the application paragraph of the
instructions.” 892 S.W.2d 234, 237 (Tex. App.—Beaumont 1995, writ ref’d).
Because we hold that the jury charge sufficiently defines theft, we need not
conduct a harm analysis.
CONCLUSION
We overrule appellant’s sole point of error and affirm the judgment of the
trial court.
Sherry Radack Chief Justice
Panel consists of Chief Justice Radack and Justices Bland and Huddle.
Do not publish. TEX. R. APP. P. 47.2(b).