IN THE TENTH COURT OF APPEALS
No. 10-14-00043-CR
BRENT LYNN CHRISTIAN, Appellant v.
THE STATE OF TEXAS, Appellee
From the 220th District Court Bosque County, Texas Trial Court No. CR14779
MEMORANDUM OPINION
In one issue, appellant, Brent Lynn Christian, challenges his conviction for
retaliation. See TEX. PENAL CODE ANN. § 36.06(a) (West 2011). Specifically, Christian
complains that the jury charge improperly defined the culpable mental states for
retaliation. We affirm.1
1 In light of our disposition, we dismiss all pending motions as moot. I. BACKGROUND
In late December 2012, Helen Chappell approached her friend, Joshua Jones, and
said that she had friends that wanted to borrow Jones’s truck. Jones agreed to allow
Chappell’s friends to borrow his truck. On December 28, 2012, Officer James Austin
Luckie, formerly an investigator with the Hood County Sheriff’s Office, received “a
complaint from an individual who said he had some scrap metal stolen from his
property and he had some pictures or video footage of the suspects that committed the
theft.” After reviewing this footage, police were able to identify Jones’s truck as the
vehicle used in the theft. And thereafter, Christian and Michael Herrera, both friends of
Chappell, were identified as the individuals who borrowed Jones’s truck and the
perpetrators in the theft of the scrap metal.
On December 30, 2012, Officer Jeff Hightower of the Bosque County Sheriff’s
Office received a complaint filed by Jones, wherein Jones alleged that he had been
assaulted by Christian and Herrera. Specifically, Jones asserted that he had been
punched and choked by Christian and that Christian and Herrera demanded to know
what information Jones had told Luckie. According to Hightower, at the time of the
complaint, Jones had an abrasion on the left side of his head, near his temple; a small
cut on his eyelid; and his right eye was swollen.
At trial, Jones recounted that Christian also “tackled me onto the bed, then
pushed my head against the bed and he started—he started saying what did you tell the
cops, what did you tell the cops.” Jones also testified that Christian threatened to kill
him. Fearful for his life, Jones told Christian that he had not said anything to police
Christian v. State Page 2 about the scrap-metal theft. A few days later, Christian and Herrera confronted Jones
again. Jones stated that Christian and Herrera pinned Jones against the truck and said
“we’re going to find out what you did, we’re going to find out what you said, and we’re
going to, you know, take care of you.” And finally, Jones noted that:
We was [sic] at a friend’s house—or I was at a friend’s house, and they [Christian and Herrera] had pulled up. They come [sic] in the living room and first—I can’t remember if it was Brent or Matthew [sic], one of them— one of them punched me in the face, then the other one punched me in the face. And Matthew [sic] grabbed me, acted like he was about to—said I am fixing to tie you up in the chair, I’m going to tie you up in the chair, tried to push the chair over towards me, fixing to get ready to tie me up. And my friend stopped him, you know, told him to stop.
Christian was eventually arrested and charged by indictment with retaliating
against Jones, “a prospective witness or a person who had reported the occurrence of a
crime.” See id. Included in the indictment was an enhancement allegation referencing
Christian’s prior felony conviction for burglary of a habitation.
At the conclusion of the evidence, the jury found Christian guilty of retaliation.
Christian pleaded “true” to the enhancement allegation contained in the indictment,
and the jury assessed punishment at twenty years’ incarceration in the Institutional
Division of the Texas Department of Criminal Justice with a $5,000 fine. Christian filed
a motion for new trial, which the trial court denied. This appeal followed.
II. THE JURY CHARGE
In his sole issue, Christian argues that the trial court did not properly tailor the
instructions and definitions in the jury charge with regard to the culpable mental states.
Christian v. State Page 3 Specifically, Christian contends that the trial court improperly included “nature of
conduct” instructions, even though retaliation is a “result of conduct” offense.
A. Standard of Review
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was
properly preserved by objection, reversal will be necessary if the error is not harmless.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was
not preserved at trial by a proper objection, a reversal will be granted only if the error
presents egregious harm, meaning appellant did not receive a fair and impartial trial.
Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm
and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.
App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
Christian admits that he did not object to the jury charge; thus, he must show
egregious harm. See Almanza, 686, S.W.2d at 171. In examining the record for egregious
harm, we consider the entire jury charge, the state of the evidence, the final arguments
of the parties, and any other relevant information revealed by the record of the trial as a
whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). 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. Stuhler v. State, 218 S.W.3d 706, 719
(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).
Christian v. State Page 4 B. Discussion
The culpable mental states in the penal code encompass three possible conduct
elements that may be involved in an offense: (1) nature of the conduct; (2) result of the
conduct; and (3) circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03
(West 2011); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). In other
words, some crimes are defined in terms of result and some are defined in terms of
conduct or circumstances. When an offense is specifically delineated as to the type of
conduct, the trial court should limit the statutory definitions in the jury charge to the
culpable mental state required. Cook v.
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IN THE TENTH COURT OF APPEALS
No. 10-14-00043-CR
BRENT LYNN CHRISTIAN, Appellant v.
THE STATE OF TEXAS, Appellee
From the 220th District Court Bosque County, Texas Trial Court No. CR14779
MEMORANDUM OPINION
In one issue, appellant, Brent Lynn Christian, challenges his conviction for
retaliation. See TEX. PENAL CODE ANN. § 36.06(a) (West 2011). Specifically, Christian
complains that the jury charge improperly defined the culpable mental states for
retaliation. We affirm.1
1 In light of our disposition, we dismiss all pending motions as moot. I. BACKGROUND
In late December 2012, Helen Chappell approached her friend, Joshua Jones, and
said that she had friends that wanted to borrow Jones’s truck. Jones agreed to allow
Chappell’s friends to borrow his truck. On December 28, 2012, Officer James Austin
Luckie, formerly an investigator with the Hood County Sheriff’s Office, received “a
complaint from an individual who said he had some scrap metal stolen from his
property and he had some pictures or video footage of the suspects that committed the
theft.” After reviewing this footage, police were able to identify Jones’s truck as the
vehicle used in the theft. And thereafter, Christian and Michael Herrera, both friends of
Chappell, were identified as the individuals who borrowed Jones’s truck and the
perpetrators in the theft of the scrap metal.
On December 30, 2012, Officer Jeff Hightower of the Bosque County Sheriff’s
Office received a complaint filed by Jones, wherein Jones alleged that he had been
assaulted by Christian and Herrera. Specifically, Jones asserted that he had been
punched and choked by Christian and that Christian and Herrera demanded to know
what information Jones had told Luckie. According to Hightower, at the time of the
complaint, Jones had an abrasion on the left side of his head, near his temple; a small
cut on his eyelid; and his right eye was swollen.
At trial, Jones recounted that Christian also “tackled me onto the bed, then
pushed my head against the bed and he started—he started saying what did you tell the
cops, what did you tell the cops.” Jones also testified that Christian threatened to kill
him. Fearful for his life, Jones told Christian that he had not said anything to police
Christian v. State Page 2 about the scrap-metal theft. A few days later, Christian and Herrera confronted Jones
again. Jones stated that Christian and Herrera pinned Jones against the truck and said
“we’re going to find out what you did, we’re going to find out what you said, and we’re
going to, you know, take care of you.” And finally, Jones noted that:
We was [sic] at a friend’s house—or I was at a friend’s house, and they [Christian and Herrera] had pulled up. They come [sic] in the living room and first—I can’t remember if it was Brent or Matthew [sic], one of them— one of them punched me in the face, then the other one punched me in the face. And Matthew [sic] grabbed me, acted like he was about to—said I am fixing to tie you up in the chair, I’m going to tie you up in the chair, tried to push the chair over towards me, fixing to get ready to tie me up. And my friend stopped him, you know, told him to stop.
Christian was eventually arrested and charged by indictment with retaliating
against Jones, “a prospective witness or a person who had reported the occurrence of a
crime.” See id. Included in the indictment was an enhancement allegation referencing
Christian’s prior felony conviction for burglary of a habitation.
At the conclusion of the evidence, the jury found Christian guilty of retaliation.
Christian pleaded “true” to the enhancement allegation contained in the indictment,
and the jury assessed punishment at twenty years’ incarceration in the Institutional
Division of the Texas Department of Criminal Justice with a $5,000 fine. Christian filed
a motion for new trial, which the trial court denied. This appeal followed.
II. THE JURY CHARGE
In his sole issue, Christian argues that the trial court did not properly tailor the
instructions and definitions in the jury charge with regard to the culpable mental states.
Christian v. State Page 3 Specifically, Christian contends that the trial court improperly included “nature of
conduct” instructions, even though retaliation is a “result of conduct” offense.
A. Standard of Review
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was
properly preserved by objection, reversal will be necessary if the error is not harmless.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was
not preserved at trial by a proper objection, a reversal will be granted only if the error
presents egregious harm, meaning appellant did not receive a fair and impartial trial.
Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm
and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.
App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).
Christian admits that he did not object to the jury charge; thus, he must show
egregious harm. See Almanza, 686, S.W.2d at 171. In examining the record for egregious
harm, we consider the entire jury charge, the state of the evidence, the final arguments
of the parties, and any other relevant information revealed by the record of the trial as a
whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). 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. Stuhler v. State, 218 S.W.3d 706, 719
(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).
Christian v. State Page 4 B. Discussion
The culpable mental states in the penal code encompass three possible conduct
elements that may be involved in an offense: (1) nature of the conduct; (2) result of the
conduct; and (3) circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03
(West 2011); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). In other
words, some crimes are defined in terms of result and some are defined in terms of
conduct or circumstances. When an offense is specifically delineated as to the type of
conduct, the trial court should limit the statutory definitions in the jury charge to the
culpable mental state required. Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App.
1994); Murray v. State, 804 S.W.2d 279, 281 (Tex. App.—Fort Worth 1991, pet. ref’d).
Appellant alleges that the definitions of the applicable culpable mental states—
intentionally and knowingly—were erroneous because they impermissibly indicated
that retaliation is nature-of-conduct oriented, as opposed to solely result oriented.
Section 36.06(a)(1)(B) of the Texas Penal Code provides that:
A person commits an offense if he intentionally or knowingly harms or threatens to harm another by an unlawful act . . . in retaliation for or on account of the service or status of another as a . . . person who has reported or who the actor knows intends to report the occurrence of a crime . . . .
TEX. PENAL CODE ANN. § 36.06(a)(1)(B). A central purpose of the retaliation statute is to
encourage a specified class of citizens to perform vital public duties without fear of
retribution. See Cada v. State, 334 S.W.3d 766, 771 (Tex. Crim. App. 2011); see also Doyle
v. State, 661 S.W.2d 726, 729 (Tex. Crim. App. 1983). Furthermore, Texas courts have
held that retaliation is a result-oriented offense. See Wilkins v. State, 279 S.W.3d 701, 704
Christian v. State Page 5 (Tex. App.—Amarillo 2007, no pet.) (citing In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—
Fort Worth 2002, no pet.); Herrera v. State, 915 S.W.2d 94, 97 (Tex. App.—San Antonio
1996, no writ)).
The indictment in this case alleged that Christian “did then and there
intentionally or knowingly harm . . . Joshua Jones, by an unlawful act, . . . assault, in
retaliation for or on account of the service of Joshua Jones as a prospective witness or a
person who had reported the occurrence of a crime.” With respect to the culpable
mental states, the abstract portion of the charge provided the following, in pertinent
part:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to the result of his conduct when it is his conscious objective or desire to engage in the conduct or cause the result.
A person acts knowingly, or with knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he is aware of the nature of his conduct or that the circumstances exist. A person acts knowingly, or with knowledge, with respect to a result of his conduct when he is aware that his conduct is reasonably certain to cause the result.
However, the application portion of the jury charge stated:
Now, if you find from the evidence beyond a reasonable doubt that on or about December 29, 2012, in Bosque County, Texas, the defendant, Brent Lynn Christian, did intentionally or knowingly harm another, to-wit: Joshua Jones, by an unlawful act, to-wit: assault, in retaliation for or on account of the service of Joshua Jones as a prospective witness or a person who had reported the occurrence of a crime, then you will find the defendant guilty of the offense of retaliation as charged in the indictment.
“Intentionally or knowingly” in the application portion of the jury charge only applied
to the result of Christian’s conduct—the harm imposed on Jones. The language
Christian v. State Page 6 contained in the application portion of the charge did not apply to any other conduct or
the nature of the conduct and tracked the allegation made in the indictment.
The Court of Criminal Appeals has held that “[w]here 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); see Plata v. State, 926 S.W.2d 300, 302-
03 (Tex. Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234
(Tex. Crim. App. 1997) (holding that the inclusion of a merely superfluous abstraction
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). Abstract statements of the law that go beyond the
allegations in the indictment will not present reversible error when the trial court’s
application of the law to the facts effectively restricts the jury’s deliberation to the
allegations in the indictment. Grady v. State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981).
Assuming, without deciding, that the abstract portion of the charge contained
error, we cannot conclude that the purported error was egregious because the
application paragraph correctly limited the culpable mental states as charged in the
indictment.2 See Medina, 7 S.W.3d at 640; Plata, 926 S.W.2d at 302-03; Grady, 614 S.W.2d
at 831; Herrera, 915 S.W.2d at 98; see also McGown v. State, No. 10-12-00092-CR, 2013 Tex.
2 Moreover, in his brief, Christian admits that the “State’s evidence was fairly convincing, so this factor likely weighs against a finding of egregious harm” and “[t]he argument of the parties did not focus on culpable mental states, so the argument has little bearing on the harmfulness of the charge error.” These statements are supported by the record. Therefore, considering the entire jury charge, the state of the evidence, the final arguments of the parties, and any other relevant information revealed by the record of the trial as a whole, we cannot say that the purported error in the jury charge egregiously harmed Christian. See Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).
Christian v. State Page 7 App. LEXIS 12115, at **17-20 (Tex. App.—Waco Sept. 26, 2013, pet. ref’d) (mem. op., not
designated for publication). As such, any error in the abstract portion of the charge was
not calculated to injure Christian’s rights or deprive him of a fair and impartial trial. See
Almanza, 686, S.W.2d at 171; see also Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at
121. Accordingly, we overrule Christian’s sole issue on appeal.
III. CONCLUSION
Having overruled appellant’s sole issue on appeal, we affirm the judgment of the
trial court.
AL SCOGGINS Justice
Before Chief Justice Gray, Justice Davis, and Justice Scoggins Affirmed Opinion delivered and filed September 25, 2014 Do not publish [CR25]
Christian v. State Page 8