REVERSE and REMAND; Opinion issued March 15, 2013.
In The øztrt nf Aiat JFift1 1iitrirt øf txai tt Onttu No, 05-10-0087k-CR
RODERICK PARKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 059391
OPINION ON REMAND Before Justices Bridges, Richter’, and Murphy Opinion By Justice Richter
A jury convicted appellant of retaliation and the court sentenced him to eight years’
imprisonment and a $500 fine. In his original brief on appeal, appellant raised four issues
asserting the trial court erred in instructing the jury. On original submission, we overruled
all of appellant’s issues and affirmed the trial court’s judgment. We observed that although
appellant’s second issue asserted he suffered harm because the definition does not correctly
state the law, he characterized this assertion as material to the harm analysis rather than as
the charge error that caused the harm.
Honorable Martin E. Richter, Retired Justice, sitting by assignment. On appellant’s petition for discretionary review, the Texas Court of Criminal Appeals
concluded we should have considered “appellant’s claim that the definition of the term
unlawful was jury charge error in generaL” Parker v. State, No, PD098 12, 2012 WL
1438901 at *1 (Tex. Crim, App. 2012) (per curiam) (not designated for publication). The
Court vacated our judgment and remanded the case to this court “to consider appellant’s
second issue on appeaL” Id. Following remand, we gave the parties the opportunity to file
supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335—36 (Tex. Crim, App.
1990). Neither party availed itself of the opportunity to provide further briefing. Having
considered appellant’s second issue as framed by the court of criminal appeals, for the
reasons that follow, we reverse the trial court’s judgment and remand for a new trial.
We review allegations ofjury charge error under the standard enunciated inAlrnanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). An erroneous or incomplete jury
charge does not result in automatic reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.
Crim. App. 1994). If error occurred, reversal is required if the error is “calculated to injure
the rights of the defendant,” which means that the accused has suffered some harm from the
error. Almanza, 686 S.W.2d at 171. Thus, an error that has been properly preserved will
require reversal only if the error is not hannless. Id. The harm suffered must be more than
merely theoretical harm, Sanchez v. State, 376 S.W.3d 767,775 (Tex. Crim. App. 2012). We
evaluate the issue of harm “in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the arguments of counsel
and any other relevant information revealed by the record of the trial as a whole.” Almanza,
—2-- 686 S.W2d at 171.
In his second issue, appellant argues he was harmed by the additional definition of
unlawful because it “violated his right to a unanimous jury,” “lowered the state’s burden of
proving each and every element of the offense beyond a reasonable doubt,” and was
“confusing, misleading, and. . . an incorrect statement of Texas law,” The court of criminal
appeals has framed the issue as whether the definition was an incorrect statement of the law.
Our inquiry is limited accordingly. 2
Appellant was charged with retaliation. See TEx. PENAL CODE ANN. § 36.06(a) (West
2011). The statute provides, in pertinent part, 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. See Id.; see also Moore
v. State, 143 S.W.3d 305, 319 (Tex. App.—Waco 2004, pet. ref’d).
After providing the statutory definition of the charged offense, the court endeavored
to define the “unlawful act” element set forth in the statute. 3 In so doing, the court provided
the definition at issue which states:
Unlawful means criminal or tortuous [sic] or both and includes what would be criminal or tortuous [sic] but for a defense not amounting to justification or privilege. Under Texas law, it is an unlawful act to threaten someone by electronic communication in a manner likely to
2 Moreover, appellant provides no argument or authority to support his contention that the instruction violated his right to a unanimous jury. Therefore, it has been waived as inadequately briefed. TEX. R. App. P. 38.1.
The trial judge noted that because the State and the defense made statements to the jury regarding the legality of 3 sending threatening text messages, he believed it necessary to instruct the jury that such an act was unlawful.
—3— alarm the person who received the threat to inflict bodily injury on that person..
Appellant does not complain about the first part of the definition, which was derived from
the definitions section of the penal code. See TEx, PENAL CODE ANN. § I .07 (48) (West 201 1). Rather, it is the second part of the definition, derived from the harassment statute, to
which appellant assigns error, See TEX. PENAL CODE ANN. § 42.07 (West 2011). In criminal jury trials, the trial court must deliver ‘a written charge distinctly setting
forth the law applicable to the case. TEx. CoDE CRIM. PRoc. ANN. art. 36.14 (West 2007).
Because the charge instructs the jury on the law applicable to the case, it must contain an
accurate statement of the law and set out all essential elements of the offense. Dinkins v.
State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). In reviewing the jury charge for any
alleged error, an appellate court must examine the charge as a whole and not as a series of
isolated and unrelated statements. Id.
The retaliation statute does not define an ‘un1awful act. See TEX. PENALCODE ANN.
§ 36.06(a) (West 2011). As a general rule, terms that are not legislatively defined are to be understood as ordinary usage allows, and jurors may give them any meaning which is
acceptable in common parlance. Medfrrd v. State, 13 S.W.3d 769,771—72 (Tex. Crim, App.
2000). On the other hand, ‘terms which have a known and established legal meaning or
which have acquired a peculiar and appropriate meaning in the law . . . are considered as
having been used in their technical sense.” Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim.
App. 2012). Terms which have a technical or legal meaning may require an explicit
-4- definition, Middleron v. State, 125 SW3d 450, 454 (Tex. Crim, App. 2003). In addition,
a trial court not only has broad discretion in submitting proper definitions and explanatory
phrases to the jury, it must define those legal phrases that a jury must use to resolve an issue
See Macias v.
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REVERSE and REMAND; Opinion issued March 15, 2013.
In The øztrt nf Aiat JFift1 1iitrirt øf txai tt Onttu No, 05-10-0087k-CR
RODERICK PARKER, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 397th Judicial District Court Grayson County, Texas Trial Court Cause No. 059391
OPINION ON REMAND Before Justices Bridges, Richter’, and Murphy Opinion By Justice Richter
A jury convicted appellant of retaliation and the court sentenced him to eight years’
imprisonment and a $500 fine. In his original brief on appeal, appellant raised four issues
asserting the trial court erred in instructing the jury. On original submission, we overruled
all of appellant’s issues and affirmed the trial court’s judgment. We observed that although
appellant’s second issue asserted he suffered harm because the definition does not correctly
state the law, he characterized this assertion as material to the harm analysis rather than as
the charge error that caused the harm.
Honorable Martin E. Richter, Retired Justice, sitting by assignment. On appellant’s petition for discretionary review, the Texas Court of Criminal Appeals
concluded we should have considered “appellant’s claim that the definition of the term
unlawful was jury charge error in generaL” Parker v. State, No, PD098 12, 2012 WL
1438901 at *1 (Tex. Crim, App. 2012) (per curiam) (not designated for publication). The
Court vacated our judgment and remanded the case to this court “to consider appellant’s
second issue on appeaL” Id. Following remand, we gave the parties the opportunity to file
supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335—36 (Tex. Crim, App.
1990). Neither party availed itself of the opportunity to provide further briefing. Having
considered appellant’s second issue as framed by the court of criminal appeals, for the
reasons that follow, we reverse the trial court’s judgment and remand for a new trial.
We review allegations ofjury charge error under the standard enunciated inAlrnanza
v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). An erroneous or incomplete jury
charge does not result in automatic reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.
Crim. App. 1994). If error occurred, reversal is required if the error is “calculated to injure
the rights of the defendant,” which means that the accused has suffered some harm from the
error. Almanza, 686 S.W.2d at 171. Thus, an error that has been properly preserved will
require reversal only if the error is not hannless. Id. The harm suffered must be more than
merely theoretical harm, Sanchez v. State, 376 S.W.3d 767,775 (Tex. Crim. App. 2012). We
evaluate the issue of harm “in light of the entire jury charge, the state of the evidence,
including the contested issues and weight of probative evidence, the arguments of counsel
and any other relevant information revealed by the record of the trial as a whole.” Almanza,
—2-- 686 S.W2d at 171.
In his second issue, appellant argues he was harmed by the additional definition of
unlawful because it “violated his right to a unanimous jury,” “lowered the state’s burden of
proving each and every element of the offense beyond a reasonable doubt,” and was
“confusing, misleading, and. . . an incorrect statement of Texas law,” The court of criminal
appeals has framed the issue as whether the definition was an incorrect statement of the law.
Our inquiry is limited accordingly. 2
Appellant was charged with retaliation. See TEx. PENAL CODE ANN. § 36.06(a) (West
2011). The statute provides, in pertinent part, 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. See Id.; see also Moore
v. State, 143 S.W.3d 305, 319 (Tex. App.—Waco 2004, pet. ref’d).
After providing the statutory definition of the charged offense, the court endeavored
to define the “unlawful act” element set forth in the statute. 3 In so doing, the court provided
the definition at issue which states:
Unlawful means criminal or tortuous [sic] or both and includes what would be criminal or tortuous [sic] but for a defense not amounting to justification or privilege. Under Texas law, it is an unlawful act to threaten someone by electronic communication in a manner likely to
2 Moreover, appellant provides no argument or authority to support his contention that the instruction violated his right to a unanimous jury. Therefore, it has been waived as inadequately briefed. TEX. R. App. P. 38.1.
The trial judge noted that because the State and the defense made statements to the jury regarding the legality of 3 sending threatening text messages, he believed it necessary to instruct the jury that such an act was unlawful.
—3— alarm the person who received the threat to inflict bodily injury on that person..
Appellant does not complain about the first part of the definition, which was derived from
the definitions section of the penal code. See TEx, PENAL CODE ANN. § I .07 (48) (West 201 1). Rather, it is the second part of the definition, derived from the harassment statute, to
which appellant assigns error, See TEX. PENAL CODE ANN. § 42.07 (West 2011). In criminal jury trials, the trial court must deliver ‘a written charge distinctly setting
forth the law applicable to the case. TEx. CoDE CRIM. PRoc. ANN. art. 36.14 (West 2007).
Because the charge instructs the jury on the law applicable to the case, it must contain an
accurate statement of the law and set out all essential elements of the offense. Dinkins v.
State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). In reviewing the jury charge for any
alleged error, an appellate court must examine the charge as a whole and not as a series of
isolated and unrelated statements. Id.
The retaliation statute does not define an ‘un1awful act. See TEX. PENALCODE ANN.
§ 36.06(a) (West 2011). As a general rule, terms that are not legislatively defined are to be understood as ordinary usage allows, and jurors may give them any meaning which is
acceptable in common parlance. Medfrrd v. State, 13 S.W.3d 769,771—72 (Tex. Crim, App.
2000). On the other hand, ‘terms which have a known and established legal meaning or
which have acquired a peculiar and appropriate meaning in the law . . . are considered as
having been used in their technical sense.” Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim.
App. 2012). Terms which have a technical or legal meaning may require an explicit
-4- definition, Middleron v. State, 125 SW3d 450, 454 (Tex. Crim, App. 2003). In addition,
a trial court not only has broad discretion in submitting proper definitions and explanatory
phrases to the jury, it must define those legal phrases that a jury must use to resolve an issue
See Macias v. State, 959 S.W.2d 332, 336 (Tex. App.—Houston 14th Dist. 1997, pet. ref’d):
see also Nejnaoui v. State, 44 S.W.3d lii, 119 (Tex. App.—Houston 14th Dist, 2001, pet.
ref’d) (stating court must define legal phrases jury must use in resolving issues and provide
statutory definition if available). Here, the term un1awful” had particular legal significance,
and as the trial court recognized, required definition to facilitate the jury’s resolution of the
ultimate issue in the case.
In crafting a definition, however, it is important to remember the function of the
definitions and instructions in a charge. The function of the abstract paragraphs is to provide
a glossary to help the jury understand the meaning of concepts and terms used in the
application paragraphs of the charge. See Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim,
App. 1996). The application paragraph in the instant case read:
If you believe from the evidence beyond a reasonable doubt that [appellant] did . . .
then and there intentionally or knowingly threaten to harm [the victim] by an unlawful act, to wit: by sending. threatening text messages in retaliation for and . .
account of the service or status of [the victim] who had reported the occurrence of a crime, to wit: Assault.
The trial court’s definition gave the statutory definition of the word unlawful. The added
language from the harassment statute, which is a specific offense to that charged, was not
necessary to further define an unlawful act, and was improperly included in the charge.
—5— Therefore, we conclude the court’s definition was erroneous. 4
Having concluded that the definition was erroneous, we now consider whether
appellant suffered harm, and any other relevant intirmation revealed by the record of the
trial as a whole,” Aimanza, 686 S.W.2d at 171. Appellant objected to the complainedof
definition as follows:
“...actually, my objection is under Texas law, That law refers to a completely different crime under the statute of harassment as a crime I did not voir dire on. It’s a crime that I presented no evidence on. I did not prepare to defend against that particular crime and I am not prepared to address it, of course, at this late date. And again, I believe it introduces into the charge an additional burden on me as the attorney that wasn’t available when this trial started,”
We deem this objection sufficient to preserve appellant’s complaint that the definition is an
incorrect statement of the law. Therefore, we consider whether appellant suffered some
harm,
Generally, reversible error occurs in the giving of an abstract instruction only when
the instruction is an incorrect or misleading statement of the law that the jury must
understand in order to implement the commands of the application paragraph. Plata, 926
S.W.2d at 302. But this is precisely what occurred here. The record reflects that appellant
assaulted the victim, Megan Lawson, and she told him she was contacting the police. After
appellant left the scene, Lawson began receiving threatening text messages from appellant’s
telephone number. Lawson continued to receive such messages after she went to the police
conclusion is limited to the facts of this case and the narrow issue remanded for our consideration.
-6- station. Whether appellant sent the messages and whether the messages were actually
conveying a threat was the crux of the State’s case and the appellant’s defense. The unlawful
act was the essence of the case. Having the language from the harassment statute in the jury
charge was confusing and could lead the jury to believe appellant was guilty of retaliation
if it believed appellant harassed the complainant. Therefore, under these circumstances, we
cannot conclude that the complaine&of definition did not cause appellant to suffer some
harm. Appellant’s issue is sustained,
We reverse the trial court’s judgment and remand for further proceedings consistent
with this opinion.
/ /7 j
/
MMUIN RICHTER JUSTICE
Do Not Publish TEx. R. App. P. 47
1 00878F.U05
—7— (!ttnirt nf Apprah fifth 1iürirt øf t1xLis at a11a
JUDGMENT RODERICK PARKER. Appellant Appeal from the 397th Judicial District Court of Grayson County, Texas. (Tr,Ct.No. No. 051000878-CR V. 059391). Opinion delivered by Justice Richter, THE STATE OF TEXAS, Appellee Justices Bridges and Murphy participating.
Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED and the cause REMANI)ED for further proceedings.
Judgment entered March 15, 20 I 3.
/ — / EZ MAWrTN RICHTER JUSTICE