Joshua Jimenez v. State ( 2009 )


Menu:
  •                                   IN THE
    TENTH COURT OF APPEALS
    No. 10-08-00411-CR
    JOSHUA JIMENEZ,
    Appellant
    v.
    THE STATE OF TEXAS,
    Appellee
    From the 19th District Court
    McLennan County, Texas
    Trial Court No. 2008-1687-C1
    MEMORANDUM OPINION
    Joshua Jimenez was convicted of aggravated robbery, a first degree felony. TEX.
    PENAL CODE ANN. § 29.03 (Vernon 2003). A jury assessed his punishment at 55 years in
    prison and a fine of $1,100. Jimenez appeals. Because there was no charge error, the
    trial court’s judgment is affirmed.
    In one issue, Jimenez complains that the trial court’s charge to the jury on
    guilt/innocence failed to limit the culpable mental states as to the corresponding
    conduct elements of aggravated robbery as alleged in the indictment. Jimenez contends
    those corresponding conduct elements are “use/exhibition of a deadly weapon,”
    “threatened or placed in fear of imminent bodily injury or death,” and “in the course of
    committing theft.” Jimenez supplies a sample charge that includes culpable mental
    states for all the corresponding conduct elements. In his brief, Jimenez only contends
    the trial court’s failure to provide a culpable mental state for the aggravating element of
    the use or exhibition of a deadly weapon caused him egregious harm; accordingly, we
    need not decide whether all of the corresponding conduct elements require a charge on
    a culpable mental state. Jimenez claims this charging failure caused egregious harm
    because the evidence was contested as to what he had in his hand during the robbery.
    We have previously held that a second culpable mental state is not required to be
    proved in connection with the aggravating element of the use of a deadly weapon.
    Wade v. State, 
    951 S.W.2d 886
    , 889 (Tex. App.—Waco 1997, pet. ref’d). It follows then
    that the trial court was not required to instruct the jury on a culpable mental state for
    use or exhibition of a deadly weapon and did not err in failing to do so. Although
    Jimenez implies that the Court of Criminal Appeals has held otherwise in Bailey v. State,
    it has not. See Bailey v. State, 
    38 S.W.3d 157
    (Tex. Crim. App. 2001).
    Accordingly, because the trial court did not err in failing to instruct the jury on a
    culpable mental state for the use or exhibition of a deadly weapon, Jimenez’ sole issue is
    overruled.
    The trial court’s judgment is affirmed.
    TOM GRAY
    Chief Justice
    Jimenez v. State                                                                       Page 2
    Before Chief Justice Gray,
    Justice Reyna, and
    Justice Davis
    Affirmed
    Opinion delivered and filed November 10, 2009
    Do not publish
    [CRPM]
    Jimenez v. State                                Page 3
    

Document Info

Docket Number: 10-08-00411-CR

Filed Date: 11/10/2009

Precedential Status: Precedential

Modified Date: 9/10/2015