Jason Hendershot A/K/A Jason Hendershott v. State ( 2012 )

NUMBER 13-10-00452-CR
COURT OF APPEALS
THIRTEENTH DISTRICT OF TEXAS
CORPUS CHRISTI – EDINBURG
JASON HENDERSHOT Appellant,
AKA JASON HENDERSHOTT,
v.
THE STATE OF TEXAS, Appellee.
On appeal from the 148th District Court
of Nueces County, Texas.
MEMORANDUM OPINION
Before Chief Justice Valdez and Justices Garza and Vela
Memorandum Opinion by Justice Garza
Appellant, Jason Hendershot aka Jason Hendershott, challenges his conviction
on eight first-degree felony counts of aggravated sexual assault of a child, two first-
degree felony counts of aggravated kidnapping, and two second-degree felony counts
of indecency with a child. See TEX. PENAL CODE ANN. §§ 20.04 (aggravated
kidnapping), 21.11 (indecency with a child) (West 2011), § 22.021 (aggravated sexual
assault of a child) (West Supp. 2011). A jury assessed punishment at life imprisonment
for each of the first-degree felonies and twenty years’ imprisonment for the indecency
charges, with the sentences to run concurrently. Hendershot raises seven issues on
appeal. We affirm.
I. BACKGROUND
T.K. testified that, on May 19, 2007, when she was 14 years old, she was
vacationing at a beach house in Aransas Pass, Texas, with her friend, K.V., and K.V.’s
mother and sister. K.V. was 15 years old at the time. While at the beach, T.K. and K.V.
met two high-school-age boys, identified as Stephen and Chris, and spent several hours
playing and swimming with them at the beach. At some point, Stephen introduced the
girls to his father, Noe Hernandez, and Hernandez’s friend, Hendershot. The group
spent some time riding around the beach in Hernandez’s black Ford truck.
Stephen and Chris dropped T.K. and K.V. off in the afternoon and agreed to
meet up later to go to a bonfire at the beach. T.K. left her phone number on
Hernandez’s cell phone, since he shared the phone with his son. That evening, T.K.
received a call that she believed was from Chris. The caller invited T.K. and K.V. to the
bonfire and asked to meet up at the beach. The girls snuck out of the house they were
staying in, walked to the beach, and saw the black Ford truck waiting for them. They
were surprised to find only Hernandez and Hendershot waiting inside the truck. The
men said they were there to pick up the girls and take them to meet Stephen and Chris
at the bonfire. T.K. and K.V. got in the truck and sat in between Hernandez and
Hendershot in the front seat. According to the testimony of both T.K. and K.V.,
Hernandez drove the truck for approximately thirty minutes to an hour, and they ended
2
up in a remote, deserted area of the beach.
T.K. testified that Hernandez then pulled K.V. from the truck by her hair, and
Hendershot grabbed her cell phone and broke it “in half.” Hendershot then put his hand
around T.K.’s neck, pinned her down on the front seat and told her to undress, and
threatened to kill her and “hunt down” and kill her family if she did not comply.
Hendershot then forced T.K. to engage in various sex acts. T.K. stated that Hernandez
then pulled her out of the cab and took her into the bed of the truck, where he forced
T.K. to engage in various sex acts.
K.V. testified that Hernandez pulled her by the hair to the bed of the truck and
tried to remove her clothes. K.V. resisted, so Hernandez slapped her in the face and
forcibly removed her clothes. Hernandez then forced K.V. to engage in various sex
acts. She testified that Hendershot then came to the back of the truck “a few minutes
later” and forced her to engage in various sex acts. According to K.V., Hernandez told
the girls that if they told anyone about what happened, “he would find us and kill our
family and us.”
Both T.K. and K.V. testified that, after the ordeal, Hernandez poured water on the
girls’ genital areas in order to clean them off, and he told them to rinse out their mouths
with mouthwash. T.K. and K.V. got back in the truck and Hernandez and Hendershot
drove them back to the area where they had initially met. Fearing that the men would
“hunt [them] down,” T.K. and K.V. returned to the beach house and went to sleep
without reporting the assaults. The next morning, the group returned to their home in
Cedar Park, Texas. The following day, a Monday, T.K. came over to K.V.’s house so
the two could walk to school together. When T.K. arrived, according to K.V., “we started
to just cry and we knew we had to tell our parents what had happened.” Police were
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called and the girls submitted to physical examinations at a hospital.
Julie Gibbs, the sexual assault nurse examiner that performed the physical
examinations, testified that the results indicated that both girls had minor injuries to their
genital areas that were consistent with having suffered sexual assault.
Robin Castro, a forensic scientist with the Texas Department of Public Safety
(“DPS”), testified that she performed testing on evidence obtained from the girls’ bodies
and clothing. Castro stated that K.V.’s underwear contained DNA from her as well as
an unknown male, and that neither Hendershot nor Hernandez could be excluded as
contributors of that DNA. Castro also stated that there were sperm cells recovered from
T.K.’s body and that Hernandez could not be excluded as a contributor of those cells,
but Hendershot could be excluded.
After the sexual assault examinations, T.K. and K.V. gave statements to police in
which they described the assailants and the truck in which the assaults occurred. After
subsequent police investigation, T.K. and K.V. each were presented with two photo
lineups. Both girls identified Hendershot and Hernandez as the individuals that
assaulted them. The men were arrested and tried together. Both were convicted on all
counts and sentenced to multiple terms of life imprisonment. Hendershot’s appeal
followed.1
II. DISCUSSION
A. Media Presence in Courtroom
1
Hernandez also appealed his conviction, and we affirmed. Hernandez v. State, No. 13-10-
00473-CR, 2012 Tex. App. LEXIS 2546 (Tex. App.—Corpus Christi Mar. 29, 2012, pet. filed) (mem. op.,
not designated for publication).
4
By his first issue, Hendershot argues that the trial court erred by allowing
cameras in the courtroom.2 The reporter’s record shows that the following colloquy
occurred immediately before the jury was asked to enter the courtroom for the first day
of trial:
[Hendershot’s counsel]: I’d like to object to the cameras being allowed in
the courtroom, Your Honor. This case has been
covered extensively by the media and I don’t
want the fact that the media is present to affect
anybody’s decision or anybody’s presentation of
this case. And I believe we’ve leveled the
playing field, if the media was not allow[ed] in
the courtroom. I believe their being in
courtroom is prejudice to my client.
THE COURT: How so, sir?
[Hendershot’s counsel]: Again, Your Honor, I believe, it’s going to—I
think it will have an [e]ffect on how this case is
presented, how decisions are made in this case.
THE COURT: How so, sir?
[Hendershot’s counsel]: With them being in the courtroom.
THE COURT: How so, sir?
[Hendershot’s counsel]: That—that’s how, Your Honor.
THE COURT: Well, but how would decision making—and you
haven’t identified the person, but how would
decision making be affected?
[Hendershot’s counsel]: Your Honor, I don’t want some—I don’t want a
thought process to be affected by the fact that
the media may be second-guessing a situation.
THE COURT: Not having—
2
Hendershot’s issue complains that the trial court allowed cameras in the courtroom “during jury
selection.” However, his citations to the reporter’s record reflect that he is complaining about the
presence of cameras in the courtroom during the guilt/innocence phase of the trial.
5
[Hendershot’s counsel]: Anybody’s thought process, Judge. And that
goes for the prosecution, the Court, defense
counsel.
THE COURT: I’ve not heard much specificity to the objection.
The objection’s overruled.
Hendershot bases his argument on Estes v. Texas, 381 U.S. 532 (1965), a
decades-old United States Supreme Court case. In Estes, the Court concluded that the
defendant was denied his right to due process because the intrusion of press and
television equipment in the courtroom during his trial led to a “circus” atmosphere. See
id. at 605 n.3. Hendershot concedes that the situation in his case was not the “circus”
as in Estes, but he claims that “the media presence potentially caused an inappropriate
situation with jurors on the first day of trial.” We disagree. In Chandler v. Florida, the
United States Supreme Court stated that Estes “is not to be read as announcing a
constitutional rule barring still photographic, radio, and television coverage in all cases
and under all circumstances.” 449 U.S. 560, 573 (1981). Instead, a defendant bears
the burden to show
with . . . specificity that the presence of cameras impaired the ability of the
jurors to decide the case on only the evidence before them or that [the]
trial was affected adversely by the impact on any of the participants of the
presence of cameras and the prospect of broadcast.
Id. at 581; see Houston Chronicle Publ’g Co. v. Shaver, 630 S.W.2d 927, 933 (Tex.
Crim. App. 1983); see also Graham v. State, 96 S.W.3d 658, 660 (Tex. App.—
Texarkana 2003, pet. ref’d) (recognizing that “broadcast camera equipment circa 2001
is a far cry from the black and white pedestal cameras used in 1964” and “is typically
fairly unobtrusive”).
Hendershot’s appellate counsel, like his trial counsel, and like the appellant in
Chandler, is unable to articulate with any specificity how or why the presence of
6
cameras in the courtroom “impaired the ability of the jurors to decide the case on only
the evidence before them” or adversely affected the trial. Chandler, 449 U.S. at 581.
Accordingly, we cannot say that Hendershot was denied due process. His first issue is
overruled.
B. Admission of Evidence
Hendershot’s second through sixth issues each allege that the trial court
improperly admitted evidence at trial. We review a trial court's decision to admit
evidence under an abuse of discretion standard. Walters v. State, 247 S.W.3d 204, 217
(Tex. Crim. App. 2007). The trial court abuses its discretion only when the decision lies
“outside the zone of reasonable disagreement.” Id.
1. Lineup Admonishments
By his second issue, Hendershot contends that the trial court erroneously
admitted evidence of admonishments given prior to one of the photo lineups. He claims
they are inadmissible hearsay.
During the testimony of Texas Ranger Roberto Garza, who investigated the
case, the State introduced into evidence a form containing written admonishments.
Ranger Garza testified that he presented the form to K.V. prior to having her view a
photo lineup. The form states:
In a moment, you will be shown a group of photographs. The group of
photographs may or may not contain a picture of the person who
committed the crime now being investigated. Keep in mind that hair
styles, hair color, beards, and mustaches may be easily changed. Also,
photographs may not always depict the true complexion of a person—it
may be lighter or darker than shown the in photograph. Pay no attention
to any markings or numbers that may appear on the photographs or any
differences in the type or style of the photographs. When you have looked
at all the photographs, tell me whether or not you see the person who
committed the crime. Please do not tell any of the other witnesses that
you have or have not identified anyone.
7
The form was initialed by K.V. and signed by Ranger Garza. Additionally, Ranger
Garza read the admonitions aloud at trial at the request of the prosecutor. Hendershot’s
counsel objected and the trial court overruled the objection. Subsequently, the State
offered into evidence the very same form as presented to and initialed by T.K. Defense
counsel did not object.
This issue fails on a number of levels. First, Hendershot failed to preserve it for
our review. To preserve error in admitting evidence, a party must object each time the
inadmissible evidence is offered or obtain a running objection. Lane v. State, 151
S.W.3d 188, 193 (Tex. Crim. App. 2004) (citing Valle v. State, 109 S.W.3d 500, 509
(Tex. Crim. App. 2003)). Hendershot’s trial counsel did not object to the admonishment
form when it was admitted a second time and he did not obtain a running objection.
Second, the admonishments are not hearsay. “‘Hearsay’ is a statement, other than one
made by the declarant while testifying at the trial or hearing, offered in evidence to
prove the truth of the matter asserted.” TEX. R. EVID. 801(d). “An extrajudicial
statement or writing which is offered for the purpose of showing what was said rather
than for the truth of the matter stated therein does not constitute hearsay.” Dinkins v.
State, 894 S.W.2d 330, 347 (Tex. Crim. App. 1995); see Fischer v. State, 207 S.W.3d
846, 851 (Tex. App.—Houston [14th Dist.] 2006) (noting that “questions and
instructions” given to a suspect “are not statements offered to prove the truth of the
matter asserted, and thus, are not inadmissible hearsay”), aff’d, 252 S.W.3d 375 (Tex.
Crim. App. 2008). Finally, Hendershot has not made any argument as to how or why
his “substantial rights” were harmed by the admission of the testimony. See TEX. R.
APP. P. 44.2(b) (stating that, for non-constitutional error in a criminal case, we must
8
disregard errors that do not “affect substantial rights”); see also Yanez v. State, 199
S.W.3d 293, 308 (Tex. App.—Corpus Christi 2006, pet. ref’d) (“The admission of
inadmissible hearsay constitutes non-constitutional error, and it will be considered
harmless if the appellate court, after examining the record as a whole, is reasonably
assured that the error did not influence the jury verdict or had but a slight effect.”).
We overrule Hendershot’s second issue.
2. Interview Admonishments
By his third issue, Hendershot complains of the trial court’s admission of a
“Warning and Waiver of Rights” form that was read to Hernandez prior to a police
interview. The form, which contained standard Miranda warnings, see Miranda v.
Arizona, 384 U.S. 436, 444 (1966), was offered into evidence by the State during
Ranger Garza’s testimony, immediately prior to offering a video recording of the
interview itself, which also contained the admonishments. Hendershot’s counsel
objected to the admission of the admonishment form and the interview on the basis that
they violate the best evidence rule. See TEX. R. EVID. 1002 (“To prove the content of a
writing, recording, or photograph, the original writing, recording, or photograph is
required except as otherwise provided in these rules or by law.”) On appeal, only the
admission of the admonishment form is contested.
Hendershot appears to argue that the admission of the written admonishments
violated the best evidence rule because the video recording containing the same
admonishments was the “original” under Rule 1002. We need not decide the merits of
the issue because Henderson has not provided any argument as to how or why his
“substantial rights” were affected by the admission of evidence of written
9
admonishments given to his co-defendant. See TEX. R. APP. P. 44.2(b). Any error,
therefore, is harmless. See id. We overrule Hendershot’s third issue.
3. Lineup Photographs
Henderson argues by his fourth issue that the trial court erred by admitting
additional photographs from a lineup array which he contends are “not relevant to any
issue in the case.” Evidence is relevant, and generally admissible, if it has “any
tendency to make the existence of any fact that is of consequence to the determination
of the action more probable or less probable than it would be without the evidence.”
TEX. R. EVID. 401, 402.3
Ranger Garza testified that, after identifying Hernandez as one of the two
assailants, he reviewed Hernandez’s phone records and was able to identify two
individuals whom he suspected might be the second assailant—Hendershot and
another man (referred to herein as the “second suspect”). Ranger Garza then showed
both T.K. and K.V. two separate photo lineups, one featuring Hendershot and one
featuring the second suspect. Each photo lineup depicted six visages overall. Both
victims picked Hendershot out of the lineup featuring him; and neither picked out
anyone from the lineup featuring the second suspect. Hendershot complains that the
trial court admitted, over his trial counsel’s objections, evidence of the photo lineups
featuring the second suspect. He claims that this evidence “unnecessarily bolster[ed]
3
Hendershot’s appellate brief also cites Texas Rule of Evidence 403, which states: “Although
relevant, evidence may be excluded if its probative value is substantially outweighed by the danger of
unfair prejudice, confusion of the issues, or misleading the jury, or by considerations of undue delay, or
needless presentation of cumulative evidence.” TEX. R. EVID. 403. He has not preserved this particular
complaint for appeal, however, because his trial counsel only objected to the evidence on the grounds of
relevance. See Lovill v. State, 319 S.W.3d 687, 691–92 (Tex. Crim. App. 2009) (“A complaint will not be
preserved if the legal basis of the complaint raised on appeal varies from the complaint made at trial.”).
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the original photograph lineup” and “was irrelevant to the issue of identification, since
the girl[s] had identified [Hendershot] from the original six photograph lineup array.”
The State contends that the evidence was relevant because it showed that T.K.
and K.V. in fact picked only Hendershot out of twelve different photographs rather than
just six. We agree. Hendershot appears to concede that the evidence was relevant by
arguing on appeal that this evidence “unnecessarily bolster[ed]” the evidence that both
victims identified Hendershot as one of their assailants, which was indisputably
relevant.4 We note also that the State has cited cases from other jurisdictions wherein
courts have concluded that so-called “negative identification” evidence may be relevant
when the veracity of a complainant’s identification is at issue. See People v. Tisdel, 775
N.E.2d 921, 927 (Ill. 2002) (noting that “evidence that a witness viewed a lineup
containing individuals similar in appearance to the defendant but did not identify anyone
would be relevant to the identification process”); People v. Wilder, 712 N.E.2d 652, 654
(N.Y. 1999) ("[A]s a general proposition, negative identification evidence will be relevant
in certain circumstances . . . . [W]hen the reliability of an eyewitness identification is at
issue, negative identification evidence can tend to prove that the eyewitness possessed
the ability to distinguish the particular features of the perpetrator.”). We conclude that
this particular evidence was relevant because it made the existence of a consequential
fact—i.e., that the girls’ identification of Hendershot was accurate—more probable than
it would be without the evidence. See TEX. R. EVID. 401.
Hendershot’s fourth issue is overruled.
4. Hernandez Statement
4
Again, Hendershot’s trial counsel objected to this evidence only on the basis of relevance;
therefore, to the extent that he argues on appeal that the evidence constituted improper “bolstering,” he
has not preserved that complaint. See id.
11
By his fifth issue, Hendershot contends that the trial court erred by admitting
evidence of a statement made by Hernandez to his son about whether he had to abide
by a subpoena issued for his presence at trial. Specifically, the prosecutor asked
Stephen, Hernandez’s son: “Did your father tell you that you didn’t have to show up for
a subpoena because we couldn’t do anything[?]” The trial court overruled Hendershot’s
trial counsel’s objection to the question. The witness replied: “Yes, ma’am, he did say
that I didn’t have to show up for the subpoena. . . . He did tell me nothing could be done
to me . . . .” Hendershot argues that this evidence was irrelevant.
We disagree. Any conduct on the part of a person accused of a crime,
subsequent to its commission, which indicates a consciousness of guilt may be received
as a circumstance tending to prove that he committed the act with which he is charged.
Cueva v. State, 339 S.W.3d 839, 882 (Tex. App.—Corpus Christi 2011, pet. ref’d) (citing
Torres v. State, 794 S.W.2d 596, 598 (Tex. App.—Austin 1990, no pet.)). An attempt to
tamper with a witness, or any criminal act designed to reduce the likelihood of
prosecution, is an example of evidence showing “consciousness of guilt.” See id. (citing
Gonzalez v. State, 117 S.W.3d 831, 842 (Tex. Crim. App. 2003); Wilson v. State, 7
S.W.3d 136, 141 (Tex. Crim. App. 1999); Ransom v. State, 920 S.W.2d 288, 299 (Tex.
Crim. App. 1996) (en banc) (op. on reh’g); see also TEX. PENAL CODE ANN. § 36.05(a)(4)
(West Supp. 2011) (defining the crime of tampering with a witness as, inter alia,
“coerc[ing] a witness or prospective witness in an official proceeding . . . to absent
himself from an official proceeding to which he has been legally summoned . . .”).
Hendershot’s fifth issue is overruled.
5. Blood Sample
12
By his sixth issue, Hendershot argues that the trial court improperly admitted
evidence of a blood sample because the State did not establish the proper chain of
custody.
The Texas Court of Criminal Appeals has stated that, “although the evidentiary
rules do not specifically address proper chain of custody, they do state that identification
for admissibility purposes is satisfied if the evidence is sufficient to support a finding that
the matter in question is what its proponent claims.” Druery v. State, 225 S.W.3d 491,
503 (Tex. Crim. App. 2007) (citing TEX. R. EVID. 901(a)). The court properly admits
evidence when a reasonable juror could find that the evidence was authenticated.
Pondexter v. State, 942 S.W.2d 577, 586 (Tex. Crim. App. 1996) (en banc). A chain of
custody is sufficiently authenticated when the State proves the beginning and end of the
chain; it need not show a “moment-by-moment account of the whereabouts of evidence
from the instant it is seized.” Shaw v. State, 329 S.W.3d 645, 654 (Tex. App.—Houston
[14th Dist.] 2010, pet. ref’d) (citing Reed v. State, 158 S.W.3d 44, 52 (Tex. App.—
Houston [14th Dist.] 2005, pet. ref'd). Absent evidence of tampering, most questions
concerning care and custody of a substance go to the weight attached to the evidence,
not to its admissibility. Id. (citing Lagrone v. State, 942 S.W.2d 602, 617 (Tex. Crim.
App. 1997)); see Caddell v. State, 123 S.W.3d 722, 727 (Tex. App.—Houston [14th
Dist.] 2003, pet. ref’d) (“Objections regarding theoretical or speculative breaches in the
chain, without affirmative evidence of impropriety, go to the weight of the evidence
rather than to its admissibility.”).
Here, Ranger Garza testified that he obtained evidentiary search warrants to
collect blood samples from Hernandez and Hendershot; that he observed a nurse
extract blood from each of the men on February 25, 2009; that the nurse gave the
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samples to him in glass vials; and that he sealed each sample in a bag and took them to
the DPS crime laboratory in Corpus Christi. He stated that, when the lab completed its
analysis, he picked the vials up from the lab and held it in his property locker which is
locked at all times. Ranger Garza later testified that he recognized the vials marked as
State’s exhibits 20 and 21, and that those vials contained the blood that he watched
being drawn from the two co-defendants.
Castro, the DPS forensic scientist, testified that the blood samples were properly
sealed when she received them and that she did DNA analysis on those samples. She
stated that, when the analysis was complete, she re-sealed the samples and initialed
the vials.
Patrick Jennings, the nurse who drew the blood samples from both Hernandez
and Hendershot, testified as to his standard procedure for collecting blood samples
pursuant to a search warrant. He stated that he typically obtains a photo identification
of the individual named in the warrant and writes the individual’s name and date of birth
on the vial into which the individual’s blood will be drawn. When the draw is complete,
he writes his own initials and the date of the draw on the vial, places it in a biohazard
bag, and seals in it front of the patient and the attending officer. Jennings stated that, in
the case of Hendershot’s sample, he “cannot tell” if his initials are present on the vial
because “[w]here I would put my initials there is a lot of writing from the lab. It covers
everything.” Jennings did state, however, that he recognized his own handwriting on
other parts of the vial.
Hendershot contends that, “[b]ecause the [S]tate failed to establish that the
nurse’s initials were on the vials of blood, the chain of custody was broken.” He does
not, however, cite any legal authority, and we find none, establishing that such a failure
14
constitutes affirmative evidence of tampering or other impropriety. See Caddell, 123
S.W.3d at 727. Instead, as noted, the State is only required to establish the beginning
and the end of the chain of custody in order to admit the evidence; any other questions
concerning “care and custody” of the evidence goes only to the weight of the evidence.
See Shaw, 329 S.W.3d at 654. Ranger Garza’s testimony itself established the
beginning and the end of the chain of custody with respect to Hendershot’s blood
sample. A reasonable juror could have concluded that the evidence was authenticated.
See Pondexter, 942 S.W.2d at 586. Accordingly, Hendershot’s fifth issue is overruled.
C. Charge Error
Finally, Hendershot argues by his seventh issue that the trial court erroneously
allowed the State’s proposed definition of “reasonable doubt” to be included in the jury
charge. The paragraph of the jury charge at issue stated:
The prosecution has the burden of proving the Defendant guilt [sic] and it
must do so by proving each and every element of the offense charged
beyond a reasonable doubt and if it fails to do so, you must acquit the
Defendant. It is not required that the prosecution prove guilt beyond all
possible doubt; it is required that the prosecution’s proof excludes all
reasonable doubt concerning the Defendant’s guilt.
Hendershot’s counsel objected to the last sentence in this paragraph, arguing that it
improperly defined “reasonable doubt” for the jury. In reviewing an alleged jury charge
error that has been preserved by objection at trial, as here, we first examine the charge
to determine if there was error, and if we find error, we must reverse if we find that
“some harm” has been done to the appellant’s rights. Ngo v. State, 175 S.W.3d 738,
743 (Tex. Crim. App. 2005) (en banc).
In 1991, the Texas Court of Criminal Appeals held for the first time that
“reasonable doubt” must be defined in a criminal jury charge. See Geesa v. State, 820
15
S.W.2d 154, 162 (Tex. Crim. App. 1991). The Court explicitly overruled that holding in
Paulson v. State, 28 S.W.3d 570, 573 (Tex. Crim. App. 2000). In Paulson, the Court
stated that “the better practice is to give no definition of reasonable doubt at all to the
jury.” Id. However, in Woods v. State, the Court concluded that the trial court’s
inclusion of a definition of “reasonable doubt” identical to the definition in the instant
case was not an abuse of discretion. 152 S.W.3d 105, 115 (Tex. Crim. App. 2004). In
Mays v. State, the Court again concluded that the inclusion of an instruction identical to
the one in the instant case was not an abuse of discretion. 318 S.W.3d 368, 389 (Tex.
Crim. App. 2010). Bound as we are to follow the precedent of the court of criminal
appeals, see Ervin v. State, 331 S.W.3d 49, 53 (Tex. App.—Houston [1st Dist.] 2010,
pet. ref'd), we likewise conclude that the jury charge in this case did not contain error. 5
We overrule Hendershot’s seventh issue.
III. CONCLUSION
Having overruled Hendershot’s seven issues, we affirm the judgment of the trial
court.
________________________
DORI CONTRERAS GARZA
Justice
Do not publish.
TEX. R. APP. P. 47.2(b)
Delivered and filed the
9th day of August, 2012.
5
The State argues that, even if the inclusion of the definition was error, Hendershot invited the
error because his trial counsel suggested to the jury at voir dire and closing argument that “reasonable
doubt” is “not clearly defined” and “for some people” may mean “all doubt.” See Woodall v. State, 336
S.W.3d 634, 644 (Tex. Crim. App. 2011) (“The law of invited error provides that a party cannot take
advantage of an error that it invited or caused, even if such error is fundamental.”). We need not address
this argument because we have found no jury charge error. See TEX. R. APP. P. 47.1.
16