COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00091-CR
JAMES DANIEL HARRIS APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
MEMORANDUM OPINION 1
Appellant James Daniel Harris was found guilty of possession of more than
4 but less than 200 grams of methamphetamine. The jury assessed his
punishment at confinement for life with a $10,000 fine. In his sole point,
Appellant argues that the trial court erred by charging the jury in the abstract
portion of the charge that possession of a controlled substance is a result-of-
1 See Tex. R. App. P. 47.4. conduct offense when, in fact, it is solely a nature-of-conduct or circumstances-
surrounding-the-conduct offense. We affirm.
I. BACKGROUND
On September 8, 2009, Officer Gerald Schulte executed a search warrant
at Harris’s residence. During the search, Schulte and other officers found more
than eighteen grams of methamphetamine. In an interview conducted at the
scene, Harris confessed to ownership of the methamphetamine, stating “all the
dope in the house is mine. . . . That’s what I do.” Officers also found several
items in the house that indicated Harris intended to distribute methamphetamine.
A grand jury indicted Harris for intentionally and knowingly possessing, with the
intent to deliver, more than 4 but less than 200 grams of methamphetamine. See
Tex. Health & Safety Code Ann. § 481.112 (West 2010).
The abstract portion of the jury charge defined the applicable culpable
mental states:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a 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. [Emphases added.]
The charge’s application paragraphs stated:
2 Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that James Daniel Harris . . . did then and there intentionally or knowingly possess, with intent to deliver, a controlled substance . . . then you will find the defendant guilty of possession of [a] controlled substance with intent to deliver as alleged in the indictment.
....
. . . Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that James Daniel Harris . . . did then and there intentionally or knowingly possess a controlled substance, . . . then you will find the defendant guilty of possession of [a] controlled substance as included in the indictment.
No objection was made to these definitions or instructions. Harris was convicted
of the lesser-included offense of possession of more than 4 but less than 200
grams of methamphetamine. See Tex. Health & Safety Code Ann. § 481.115
(West 2010). Harris then appealed.
Harris’s appointed appellate counsel filed a motion to withdraw
accompanied by a brief in compliance with Anders v. California, 386 U.S. 738, 87
S. Ct. 1396 (1967). On May 30, 2013, we granted counsel’s motion to withdraw
and remanded the appeal to the trial court for appointment of new counsel based
on the presence of arguable issues. Thereafter, Harris’s new appellate counsel
argued that the allegedly erroneous jury charge caused him egregious harm.
II. DISCUSSION
A. INACCURACIES IN THE REPORTER’S RECORD
As noted above, Appellant’s first appointed appellate attorney concluded
that there were no arguable issues arising from Appellant’s conviction. After
3 counsel filed an Anders brief and was allowed to withdraw, Appellant began filing
documents in this court pro se. We construed some of these filings to be
complaints to the accuracy of the reporter’s record and the exclusion of an exhibit
referred to at trial. We abated the appeal and ordered the trial court to conduct a
hearing to determine whether the reporter’s record was complete. See Tex. R.
App. P. 34.6(e)(3). The trial court did so and found that (1) “the reporter’s record
is accurate”; (2) “the visual aids utilized by the prosecutor during his punishment
argument were not offered into evidence; therefore, they are not part of the
appellate record”; and (3) “nor were the visual aids taken into the jury room
during deliberations.” Appellant then filed objections to the trial court’s findings in
this court.
At the hearing, Appellant asserted that the prosecutor, during testimony by
some of the State’s witnesses, marked on a paper pad on an easel to “draw[] the
locale of what they viewed to be the scene of the meth lab.” The prosecutor
“clearly . . . marked with different colored markers showing location, direction,
position.” Appellant argued, therefore, that the reporter’s record was inaccurate
because the prosecutor’s drawing was not included as an exhibit. But the
drawing was never offered as an exhibit and admitted into evidence. Indeed, the
trial court rechecked the exhibit box and discovered that no such drawing was
included.
As required by rule 34.6(e)(3), we submitted Appellant’s dispute to the
reporter’s record to the trial court for “resolution.” Id. The trial court resolved the
4 dispute and concluded that the record was not inaccurate. Tex. R. App. P.
34.6(e)(2). We are not in a position to question the trial court’s findings. Indeed,
the rule provides that “the trial court must . . . settle the dispute.” Id. We are
satisfied that the trial court correctly reviewed and resolved Appellant’s complaint
under rule 34.6(e)(3). Thus, this dispute has been finally settled. See, e.g.,
Jaynes v. State, 216 S.W.3d 839, 843–44 (Tex. App.—Corpus Christi 2006, no
pet.); Borunda v. State, No. 05-00-00568-CR, 2001 WL 722151, at *3–4 (Tex.
App.—Dallas June 28, 2001, no pet.) (not designated for publication).
B. JURY CHARGE
We now turn to Appellant’s argument that the jury charge contained
egregious error based on the definitions of the applicable culpable mental states.
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine
whether error occurred; if error did not occur, our analysis ends. Id. If error
occurred, whether it was preserved determines the degree of harm required for
reversal. Id. Unpreserved charge error warrants reversal only when the error
resulted in egregious harm. Pickens v. State, 165 S.W.3d 675
Free access — add to your briefcase to read the full text and ask questions with AI
COURT OF APPEALS SECOND DISTRICT OF TEXAS FORT WORTH
NO. 02-12-00091-CR
JAMES DANIEL HARRIS APPELLANT
V.
THE STATE OF TEXAS STATE
----------
FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY
MEMORANDUM OPINION 1
Appellant James Daniel Harris was found guilty of possession of more than
4 but less than 200 grams of methamphetamine. The jury assessed his
punishment at confinement for life with a $10,000 fine. In his sole point,
Appellant argues that the trial court erred by charging the jury in the abstract
portion of the charge that possession of a controlled substance is a result-of-
1 See Tex. R. App. P. 47.4. conduct offense when, in fact, it is solely a nature-of-conduct or circumstances-
surrounding-the-conduct offense. We affirm.
I. BACKGROUND
On September 8, 2009, Officer Gerald Schulte executed a search warrant
at Harris’s residence. During the search, Schulte and other officers found more
than eighteen grams of methamphetamine. In an interview conducted at the
scene, Harris confessed to ownership of the methamphetamine, stating “all the
dope in the house is mine. . . . That’s what I do.” Officers also found several
items in the house that indicated Harris intended to distribute methamphetamine.
A grand jury indicted Harris for intentionally and knowingly possessing, with the
intent to deliver, more than 4 but less than 200 grams of methamphetamine. See
Tex. Health & Safety Code Ann. § 481.112 (West 2010).
The abstract portion of the jury charge defined the applicable culpable
mental states:
A person acts intentionally, or with intent, with respect to the nature of his conduct or to a 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. [Emphases added.]
The charge’s application paragraphs stated:
2 Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that James Daniel Harris . . . did then and there intentionally or knowingly possess, with intent to deliver, a controlled substance . . . then you will find the defendant guilty of possession of [a] controlled substance with intent to deliver as alleged in the indictment.
....
. . . Now, bearing in mind the foregoing instructions, if you find from the evidence beyond a reasonable doubt that James Daniel Harris . . . did then and there intentionally or knowingly possess a controlled substance, . . . then you will find the defendant guilty of possession of [a] controlled substance as included in the indictment.
No objection was made to these definitions or instructions. Harris was convicted
of the lesser-included offense of possession of more than 4 but less than 200
grams of methamphetamine. See Tex. Health & Safety Code Ann. § 481.115
(West 2010). Harris then appealed.
Harris’s appointed appellate counsel filed a motion to withdraw
accompanied by a brief in compliance with Anders v. California, 386 U.S. 738, 87
S. Ct. 1396 (1967). On May 30, 2013, we granted counsel’s motion to withdraw
and remanded the appeal to the trial court for appointment of new counsel based
on the presence of arguable issues. Thereafter, Harris’s new appellate counsel
argued that the allegedly erroneous jury charge caused him egregious harm.
II. DISCUSSION
A. INACCURACIES IN THE REPORTER’S RECORD
As noted above, Appellant’s first appointed appellate attorney concluded
that there were no arguable issues arising from Appellant’s conviction. After
3 counsel filed an Anders brief and was allowed to withdraw, Appellant began filing
documents in this court pro se. We construed some of these filings to be
complaints to the accuracy of the reporter’s record and the exclusion of an exhibit
referred to at trial. We abated the appeal and ordered the trial court to conduct a
hearing to determine whether the reporter’s record was complete. See Tex. R.
App. P. 34.6(e)(3). The trial court did so and found that (1) “the reporter’s record
is accurate”; (2) “the visual aids utilized by the prosecutor during his punishment
argument were not offered into evidence; therefore, they are not part of the
appellate record”; and (3) “nor were the visual aids taken into the jury room
during deliberations.” Appellant then filed objections to the trial court’s findings in
this court.
At the hearing, Appellant asserted that the prosecutor, during testimony by
some of the State’s witnesses, marked on a paper pad on an easel to “draw[] the
locale of what they viewed to be the scene of the meth lab.” The prosecutor
“clearly . . . marked with different colored markers showing location, direction,
position.” Appellant argued, therefore, that the reporter’s record was inaccurate
because the prosecutor’s drawing was not included as an exhibit. But the
drawing was never offered as an exhibit and admitted into evidence. Indeed, the
trial court rechecked the exhibit box and discovered that no such drawing was
included.
As required by rule 34.6(e)(3), we submitted Appellant’s dispute to the
reporter’s record to the trial court for “resolution.” Id. The trial court resolved the
4 dispute and concluded that the record was not inaccurate. Tex. R. App. P.
34.6(e)(2). We are not in a position to question the trial court’s findings. Indeed,
the rule provides that “the trial court must . . . settle the dispute.” Id. We are
satisfied that the trial court correctly reviewed and resolved Appellant’s complaint
under rule 34.6(e)(3). Thus, this dispute has been finally settled. See, e.g.,
Jaynes v. State, 216 S.W.3d 839, 843–44 (Tex. App.—Corpus Christi 2006, no
pet.); Borunda v. State, No. 05-00-00568-CR, 2001 WL 722151, at *3–4 (Tex.
App.—Dallas June 28, 2001, no pet.) (not designated for publication).
B. JURY CHARGE
We now turn to Appellant’s argument that the jury charge contained
egregious error based on the definitions of the applicable culpable mental states.
“[A]ll alleged jury-charge error must be considered on appellate review
regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,
649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine
whether error occurred; if error did not occur, our analysis ends. Id. If error
occurred, whether it was preserved determines the degree of harm required for
reversal. Id. Unpreserved charge error warrants reversal only when the error
resulted in egregious harm. Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim.
App. 2005); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op.
on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).
The culpable mental states in the penal code encompass three possible
conduct elements that may be involved in an offense: nature of the conduct,
5 result of the conduct, and 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 short, 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); 43 George E. Dix &
John M. Schmolesky, Texas Practice Series: Criminal Practice & Procedure
§ 43:8 (3d ed. 2011). Appellant alleges that the definitions of the applicable
culpable mental states—intentionally and knowingly—were erroneous because
they impermissibly indicated that possession of a controlled substance is result
oriented, as opposed to solely conduct oriented.
Possession of a controlled substance has not been clearly categorized as
either result or conduct oriented. See Garcia v. State, 790 S.W.2d 22, 25 (Tex
App.—San Antonio 1990) (describing possession of marijuana as both conduct
and result oriented), appeal abated, 840 S.W.2d 957 (Tex. Crim. App. 1992);
Adams v. State, 744 S.W.2d 622, 628–29 (Tex. App.—Fort Worth 1987, pet.
ref’d) (recognizing possession of controlled substance not clearly classified as
either conduct or result oriented); see also Tex. Health & Safety Code Ann.
§ 481.115(a) (West 2010). When an offense is not neatly categorized as to the
appropriate mens rea, it is not error for the trial court to charge the jury on the
6 complete statutory definitions of the applicable culpable mental states because
the statutory definitions allow the jury to consider either the result or the nature of
the defendant’s conduct. See, e.g., Murray, 804 S.W.2d at 281; Saldivar v.
State, 783 S.W.2d 265, 268 (Tex. App.—Corpus Christi 1989, no pet.); Bosier v.
State, 771 S.W.2d 221, 225 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d).
Accordingly, the jury charge in this case, which allowed the jury to consider either
the nature or the result of Appellant’s conduct, was not erroneous.
Even if the abstract portion of the jury charge contained error, however, we
would conclude that the error was not egregious. Because the application
paragraphs correctly limited the culpable mental states as charged in the
indictment, any error in the abstract portion of the charge was not calculated to
injure Appellant’s rights or deprive him of a fair and impartial trial. Tex. Code
Crim. Proc. Ann. art. 36.19; see Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim.
App. 1999) (“Where the application paragraph correctly instructs the jury, an
error in the abstract instruction is not egregious.”), cert. denied, 529 U.S. 1102
(2000). We overrule Appellant’s point.
III. CONCLUSION
Having overruled Appellant’s sole point, we affirm the trial court’s
judgment. See Tex. R. App. P. 43.2(a).
/s/ Lee Gabriel LEE GABRIEL JUSTICE
7 PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.
DO NOT PUBLISH Tex. R. App. P. 47.2(b)
DELIVERED: April 10, 2014