In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-17-00196-CR _________________
WILLIAM MICHAEL MUNN, Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 24601 ________________________________________________________________________
MEMORANDUM OPINION
A Polk County grand jury indicted William Michael Munn for the offense of
evading arrest or detention with a vehicle, a third-degree felony. See Tex. Penal Code
Ann. § 38.04(a), (b) (West 2016).1 The indictment also alleged one prior felony
conviction for purposes of enhancement which, if true, would make the offense a
1 We cite to the current version of the statute, as it does not affect the outcome of this appeal. 1 second-degree felony. See Tex. Penal Code Ann. § 12.42(a) (West Supp. 2018).
Munn pled not guilty, but the jury found him guilty. During sentencing, Munn also
pled not true to the enhancement paragraph. After receiving a presentencing
investigation report, the trial judge found the enhancement paragraph to be true and
sentenced Munn to fifteen years confinement. In one issue, Munn asserts the
application paragraph of the court’s charge did not include as an element of the
offense that he knew the person from whom he fled was a peace officer attempting
to lawfully detain him, and this charge error caused him egregious harm.
Background
In the early morning hours of September 26, 2015, Texas Department of
Public Safety Trooper Ramey Bass was in his marked Dodge Charger. While parked
at a gas station on Highway 59 in Polk County, Texas with his windows down,
Trooper Bass heard a vehicle approaching at a high rate of speed. He observed a
black Ford Mustang GT traveling northbound on Highway 59. He was able to get a
radar reading on the vehicle’s speed, which was over one hundred miles per hour.
Trooper Bass testified he began following the vehicle and activated his lights and
sirens in an attempt stop the driver. Instead of slowing down, Trooper Bass testified
the vehicle accelerated to speeds between 130 to 140 mph.
2 At trial, the State admitted the dashcam video of the pursuit. The patrol
vehicle’s lights could be seen flashing in the video. Many other cars on the roadway
pulled over to the shoulder as the trooper’s vehicle approached. During the pursuit,
the suspect’s vehicle could be seen approaching several other cars on the roadway
and swerving at the last moment to avoid them. After traveling through several small
communities on Highway 59 in Polk County, the Mustang veered off the road to the
left in the town of Corrigan, Texas, crashing through several fences. Munn cannot
be seen in the video, but law enforcement officers can be heard repeatedly telling
him to show his hands, indicating he did not comply. Munn did not speak to Trooper
Bass or any of the other law enforcement officers when they made contact. Trooper
Bass can be heard saying repeatedly on the video that it appeared Munn was under
the influence of something. However, blood test results taken from Munn that day
later came back negative. At trial, Trooper Bass testified Munn was “in some sort of
state. I don’t know if it was mental or drug induced.” Trooper Bass testified Munn
did not speak, comply, or do anything they asked him to do. The trooper said Munn
just stared at them and did not appear to have any comprehension of what they were
saying to him.
The only exhibit admitted during the guilt or innocence phase of the trial was
the dashcam video, and Trooper Bass was the only witness to testify. During the
3 charge conference, neither the State nor the defense had any objections to the
proposed charge. The court’s charge to the jury contained the following language in
the abstract portion, “[o]ur law provides that a person commits an offense of
[e]vading [a]rrest or [d]etention if he intentionally flees from a person he knows is
a peace officer attempting lawfully to arrest or detain him.” (Emphasis added).
However, the application portion of the charge read as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 26th day of September, 2015, in Polk County, Texas, the Defendant, William Michael Munn, did intentionally flee from Ramey Bass, hereafter styled the Complainant, a peace officer employed by Department of Public Safety Highway Patrol, lawfully attempting to detain the Defendant, and the Defendant used a motor vehicle while he was in flight[,] then you will find the Defendant guilty as charged.
The application paragraph omitted the language regarding Munn’s knowledge that
Trooper Bass was a peace officer. The indictment, however, contained the
“knowing” language, which the trial judge read in open court after the jury was
impaneled but prior to opening statements.
The jury convicted Munn, and having found the enhancement paragraph true,
the trial court sentenced Munn to fifteen years in TDCJ. This appeal ensued.
Standard of Review
The trial court is required to provide the jury with a written charge setting
forth the law applicable to the case prior to the presentation of closing statements. 4 Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). If there is error in the court’s
charge “the judgment shall not be reversed unless the error appearing from the record
was calculated to injure the rights of defendant, or unless it appears from the record
that the defendant has not had a fair and impartial trial.” Id. art. 36.19 (West 2006).
Almanza v. State sets out the standard of review for jury charge error. 686 S.W.2d
157, 171 (Tex. Crim. App. 1985). Our review of charge error is a two-step process.
See id. First, we must determine if there was error in the court’s charge. See id.; see
also Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011); Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). If a reviewing court determines there was
error in the charge, it then assesses the level of harm. Taylor, 332 S.W.3d at 489;
Ngo, 175 S.W.3d 743–44; Almanza, 686 S.W.2d at 171.
Almanza construed article 36.19 as providing two distinct standards of jury
charge error. See Taylor, 332 S.W.3d at 489; Almanza, 686 S.W.2d at 171. Almanza
further explained the two standards set forth in article 36.19 depended upon whether
a defendant made a timely objection to the charge. See Almanza, 686 S.W.2d at 171;
see also Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); Taylor,
332 S.W.3d at 489. If a timely objection was made in the trial court, a reviewing
court will reverse if the error is “calculated to injure the rights of [the] defendant,”
which the Court of Criminal Appeals has interpreted to mean “some harm.” Tex.
5 Code. Crim. Proc. Ann. art. 36.19; Taylor, 332 S.W.3d at 489; Ngo, 175 S.W.3d at
743; Almanza, 686 S.W.2d at 171. On the other hand, if a defendant does not make
a timely objection to the charge, the reviewing court will not reverse unless the error
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In The
Court of Appeals
Ninth District of Texas at Beaumont
_________________
NO. 09-17-00196-CR _________________
WILLIAM MICHAEL MUNN, Appellant
V.
THE STATE OF TEXAS, Appellee ________________________________________________________________________
On Appeal from the 411th District Court Polk County, Texas Trial Cause No. 24601 ________________________________________________________________________
MEMORANDUM OPINION
A Polk County grand jury indicted William Michael Munn for the offense of
evading arrest or detention with a vehicle, a third-degree felony. See Tex. Penal Code
Ann. § 38.04(a), (b) (West 2016).1 The indictment also alleged one prior felony
conviction for purposes of enhancement which, if true, would make the offense a
1 We cite to the current version of the statute, as it does not affect the outcome of this appeal. 1 second-degree felony. See Tex. Penal Code Ann. § 12.42(a) (West Supp. 2018).
Munn pled not guilty, but the jury found him guilty. During sentencing, Munn also
pled not true to the enhancement paragraph. After receiving a presentencing
investigation report, the trial judge found the enhancement paragraph to be true and
sentenced Munn to fifteen years confinement. In one issue, Munn asserts the
application paragraph of the court’s charge did not include as an element of the
offense that he knew the person from whom he fled was a peace officer attempting
to lawfully detain him, and this charge error caused him egregious harm.
Background
In the early morning hours of September 26, 2015, Texas Department of
Public Safety Trooper Ramey Bass was in his marked Dodge Charger. While parked
at a gas station on Highway 59 in Polk County, Texas with his windows down,
Trooper Bass heard a vehicle approaching at a high rate of speed. He observed a
black Ford Mustang GT traveling northbound on Highway 59. He was able to get a
radar reading on the vehicle’s speed, which was over one hundred miles per hour.
Trooper Bass testified he began following the vehicle and activated his lights and
sirens in an attempt stop the driver. Instead of slowing down, Trooper Bass testified
the vehicle accelerated to speeds between 130 to 140 mph.
2 At trial, the State admitted the dashcam video of the pursuit. The patrol
vehicle’s lights could be seen flashing in the video. Many other cars on the roadway
pulled over to the shoulder as the trooper’s vehicle approached. During the pursuit,
the suspect’s vehicle could be seen approaching several other cars on the roadway
and swerving at the last moment to avoid them. After traveling through several small
communities on Highway 59 in Polk County, the Mustang veered off the road to the
left in the town of Corrigan, Texas, crashing through several fences. Munn cannot
be seen in the video, but law enforcement officers can be heard repeatedly telling
him to show his hands, indicating he did not comply. Munn did not speak to Trooper
Bass or any of the other law enforcement officers when they made contact. Trooper
Bass can be heard saying repeatedly on the video that it appeared Munn was under
the influence of something. However, blood test results taken from Munn that day
later came back negative. At trial, Trooper Bass testified Munn was “in some sort of
state. I don’t know if it was mental or drug induced.” Trooper Bass testified Munn
did not speak, comply, or do anything they asked him to do. The trooper said Munn
just stared at them and did not appear to have any comprehension of what they were
saying to him.
The only exhibit admitted during the guilt or innocence phase of the trial was
the dashcam video, and Trooper Bass was the only witness to testify. During the
3 charge conference, neither the State nor the defense had any objections to the
proposed charge. The court’s charge to the jury contained the following language in
the abstract portion, “[o]ur law provides that a person commits an offense of
[e]vading [a]rrest or [d]etention if he intentionally flees from a person he knows is
a peace officer attempting lawfully to arrest or detain him.” (Emphasis added).
However, the application portion of the charge read as follows:
Now, if you find from the evidence beyond a reasonable doubt that on or about the 26th day of September, 2015, in Polk County, Texas, the Defendant, William Michael Munn, did intentionally flee from Ramey Bass, hereafter styled the Complainant, a peace officer employed by Department of Public Safety Highway Patrol, lawfully attempting to detain the Defendant, and the Defendant used a motor vehicle while he was in flight[,] then you will find the Defendant guilty as charged.
The application paragraph omitted the language regarding Munn’s knowledge that
Trooper Bass was a peace officer. The indictment, however, contained the
“knowing” language, which the trial judge read in open court after the jury was
impaneled but prior to opening statements.
The jury convicted Munn, and having found the enhancement paragraph true,
the trial court sentenced Munn to fifteen years in TDCJ. This appeal ensued.
Standard of Review
The trial court is required to provide the jury with a written charge setting
forth the law applicable to the case prior to the presentation of closing statements. 4 Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). If there is error in the court’s
charge “the judgment shall not be reversed unless the error appearing from the record
was calculated to injure the rights of defendant, or unless it appears from the record
that the defendant has not had a fair and impartial trial.” Id. art. 36.19 (West 2006).
Almanza v. State sets out the standard of review for jury charge error. 686 S.W.2d
157, 171 (Tex. Crim. App. 1985). Our review of charge error is a two-step process.
See id. First, we must determine if there was error in the court’s charge. See id.; see
also Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011); Ngo v. State, 175
S.W.3d 738, 743 (Tex. Crim. App. 2005). If a reviewing court determines there was
error in the charge, it then assesses the level of harm. Taylor, 332 S.W.3d at 489;
Ngo, 175 S.W.3d 743–44; Almanza, 686 S.W.2d at 171.
Almanza construed article 36.19 as providing two distinct standards of jury
charge error. See Taylor, 332 S.W.3d at 489; Almanza, 686 S.W.2d at 171. Almanza
further explained the two standards set forth in article 36.19 depended upon whether
a defendant made a timely objection to the charge. See Almanza, 686 S.W.2d at 171;
see also Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); Taylor,
332 S.W.3d at 489. If a timely objection was made in the trial court, a reviewing
court will reverse if the error is “calculated to injure the rights of [the] defendant,”
which the Court of Criminal Appeals has interpreted to mean “some harm.” Tex.
5 Code. Crim. Proc. Ann. art. 36.19; Taylor, 332 S.W.3d at 489; Ngo, 175 S.W.3d at
743; Almanza, 686 S.W.2d at 171. On the other hand, if a defendant does not make
a timely objection to the charge, the reviewing court will not reverse unless the error
resulted in egregious harm to the defendant, which means he did not receive a “fair
and impartial trial.” Tex. Code. Crim. Proc. Ann. art. 36.19; Marshall, 479 S.W.3d
at 843; Taylor, 332 S.W.3d at 489; Almanza, 686 S.W.2d at 171. In determining
whether charge error is egregious we consider: (1) the entirety of the jury charge;
(2) the state of the evidence; (3) counsel’s arguments; and (4) any other relevant
information contained in the entire trial record. See Marshall, 479 S.W.3d at 843;
Taylor, 332 S.W.3d at 489; Almanza 686 S.W.2d at 171.
Analysis
The statute governing the offense of evading arrest or detention provides “[a]
person commits an offense if he intentionally flees from a person he knows is a peace
officer . . . attempting lawfully to arrest or detain him.” See Tex. Penal Code Ann. §
38.04(a). A defendant is entitled to have the trial court submit a written charge to the
jury containing the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14.
Failure to instruct the jury on an element of the offense is subject to a harmless-error
analysis. Olivas v. State, 202 S.W.3d 137, 143 (Tex. Crim. App. 2006). In the present
case, although the trial court submitted the offense in the abstract portion of the
6 charge, it failed to include “knows is a peace officer” in the application portion of
the charge.2 See Tex. Penal Code Ann. § 38.04(a).
The application paragraph applies the pertinent penal law, abstract definitions,
and general principles to the specific facts and the indictment allegations. Vasquez
v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). Since the application
paragraph “specifies the factual circumstances under which the jury should convict
or acquit, it is the ‘heart and soul’ of the jury charge.” Id. at 367. It is this paragraph
that authorizes the jury to act. Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App.
1991).
Because the application paragraph omitted the element that Munn knew
Trooper Bass was a peace officer, we conclude there was error in the charge. See
Tex. Penal Code Ann. § 38.04(a); Tex. Code Crim. Proc. Ann. art. 36.14. At trial,
Munn did not object to the court’s charge. Accordingly, we will conduct an
egregious harm analysis. See Marshall, 479 S.W.3d at 843; Taylor, 332 S.W.3d at
489; Almanza, 686 S.W.2d at 171.
2 The abstract portion of the charge did not include the operation of a motor vehicle, but it was included in the application paragraph. Munn does not complain about the absence of a motor vehicle in the abstract portion of the charge, so we do not address it in this opinion. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West 2016). 7 In determining whether Munn suffered egregious harm because of the charge
error, we first look to the charge in its entirety. See Marshall, 479 S.W.3d at 843;
Almanza, 686 S.W.2d at 171. Despite the application paragraph not containing the
requisite mental element that Munn knew Trooper Bass was a peace officer, the
abstract portion of the charge expressly provided a “person commits an offense of
[e]vading [a]rrest or [d]etention if he intentionally flees from a person he knows is a
peace officer attempting lawfully to arrest or detain him.” The charge also defined
“peace officer” for the jury and noted in the application paragraph that Ramey Bass
was “a peace officer employed by Department of Public Safety Highway Patrol[.]”
Moreover, the abstract portion was contained on the same page of the charge as the
application portion, and they were separated by a mere two paragraphs.
The evidence and testimony at trial showed Trooper Bass was in a marked
vehicle with lights and sirens activated as he pursued Munn. Moreover, the video
evidence at trial revealed other drivers were aware a police vehicle was attempting
to make a stop as shown by vehicles moving to the shoulder and stopping as Trooper
Bass approached.
The arguments of counsel contained explicit references to the “knowing”
portion of the statute. The State argued in closing Munn intentionally fled from a
8 person he knew to be a peace officer and that the trooper was in a marked vehicle
with the lights on.
The record further includes the State’s voir dire of the jury panel telling them
that it must prove the elements of the offense which were “that the defendant on a
certain day in Polk County, Texas, intentionally or knowingly fled from a person he
knew was a peace officer . . . attempting to lawfully arrest or detain him[.]” The trial
court also read the indictment in front of the jury, which included the allegation
Munn knew Trooper Bass was a peace officer.
An additional consideration to the foregoing is whether the error related to a
“contested issue.” See Kucha v. State, 686 S.W.2d 154, 156 (Tex. Crim. App. 1985);
see also Goff v. State, 720 S.W.2d 94, 99 (Tex. Crim. App. 1986) (holding no
egregious harm where error related to incidental theory of defense). In closing, the
defense argued the key question was Munn’s intent and whether he intended to flee
from an officer. At trial, defense counsel asked Trooper Bass whether the vehicle
was inspected for any mechanical issues that would explain Munn’s failure to stop.
This line of questioning was consistent with the defensive theory that Munn lacked
intent. Although the defense pointed out Munn appeared to be in an altered mental
state, there was never an argument that Munn was unaware Trooper Bass was a peace
officer.
9 Based on the foregoing, we determine Munn did not suffer egregious harm
because of the charge error. We overrule Munn’s sole issue on appeal.
Conclusion
We conclude the trial court erred by not including the “knowing” language in
the application portion of the charge to the jury; however, Munn did not suffer
egregious harm as a result. Accordingly, we affirm the judgment of the trial court.
AFFIRMED.
________________________________ CHARLES KREGER Justice
Submitted on August 15, 2018 Opinion Delivered October 31, 2018 Do Not Publish
Before McKeithen, CJ, Kreger and Johnson, JJ.