Kendric Johnson v. State

Affirmed and Opinion filed September 5, 2013.
In The
Fourteenth Court of Appeals
NO. 14-12-00204-CR
KENDRIC JOHNSON, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 176th District Court
Harris County, Texas
Trial Court Cause No. 1336400
OPINION
A jury convicted appellant Kendric Johnson of bail jumping and failure to
appear, and assessed his punishment at 16 years in prison.1 Appellant challenges
his conviction based on (1) sufficiency of the evidence; (2) jury charge error; and
(3) improper jury argument. We affirm.
Background
Appellant was charged with aggravated robbery, arrested, and later released
on bail on October 7, 2010. He appeared in court on October 8, and his court date
1
See Tex. Penal Code Ann. § 38.10(a), (f) (Vernon 2011).
was reset several times so he could hire an attorney. Appellant returned to court on
October 29 and November 5. He declared indigence on November 5, and the trial
court appointed Luci Davidson as counsel to represent him in further proceedings.
Appellant failed to appear for his next set court date on December 8, 2010. The
trial court immediately issued a warrant for his arrest and entered a forfeiture
judgment against him two days later. On February 3, 2011, appellant was arrested
and returned to custody.
A two-day jury trial was held beginning on February 29, 2012. The jury
found appellant guilty of bail jumping and failure to appear, and returned a
sentence of 16 years in prison. Appellant filed a timely appeal.
Analysis
I. Sufficiency of the Evidence
Appellant argues that the evidence is legally insufficient to support his
conviction for bail jumping and failure to appear because there is no evidence he
had notice of his next court date. Therefore, appellant contends the State cannot
establish that he intentionally and knowingly failed to appear in court on that date.
The State is required to prove each element of a criminal offense beyond a
reasonable doubt, and the reviewing court uses a legal sufficiency standard in
determining whether the evidence is sufficient to support the State’s assertions.
Brooks v. State, 323 S.W.3d 893, 895 (Tex. Crim. App. 2010). A successful
challenge to evidentiary sufficiency mandates an acquittal and bars retrial.
Graham v. State, 643 S.W.2d 920, 924 (Tex. Crim. App. 1981); Banks v. State,
158 S.W.3d 649, 650 n.1 (Tex. App.—Houston [14th Dist.] 2005, pet. ref’d).
Thus, sufficiency challenges must be addressed regardless of the outcome of other
issues in a case. Graham, 643 S.W.2d at 924; Banks, 158 S.W.3d at 650 n.1.
2
The court views all of the evidence in the light most favorable to the verdict
to determine whether a rational juror could have found all of the elements of the
offense beyond a reasonable doubt. Gear v. State, 340 S.W.3d 743, 746 (Tex.
Crim. App. 2011) (citing Jackson v. Virginia, 443 U.S. 307, 318-19 (1979)). The
jury is responsible for resolving conflicts in testimony, weighing the evidence, and
drawing reasonable inferences from it; the appellate court cannot substitute its
judgment for that of the factfinder. Isassi v. State, 330 S.W.3d 633, 638 (Tex.
Crim. App. 2010). The legal sufficiency standard of review for the appellate court
is the same for direct and circumstantial evidence. Id.; King v. State, 29 S.W.3d
556, 565 (Tex. Crim. App. 2000).
To convict a person for bail jumping and failure to appear, the State must
prove that the person (1) was lawfully released from custody, with or without bail;
(2) on condition that he subsequently appear; and (3) intentionally or knowingly
failed to appear in accordance with the terms of his release. See Tex. Penal Code
Ann. § 38.10(a) (Vernon 2011); Walker v. State, 291 S.W.3d 114, 117 (Tex.
App.—Texarkana 2009, no pet.); Burns v. State, 958 S.W.2d 483, 488 (Tex.
App.—Houston [14th Dist.] 1997, no pet.).
Appellant’s first argument on appeal turns on lack of notice, which negates
the intentional and knowing element of the criminal offense. See Euziere v. State,
648 S.W.2d 700, 702 (Tex. Crim. App. 1983). Appellant contends that the State
failed to produce sufficient evidence he had notice to appear.
Proof that the accused was free under an instanter bond is prima facie proof
of notice to appear. Solomon v. State, 999 S.W.2d 35, 37 (Tex. App.—Houston
[14th Dist.] 1999, no pet.); Richardson v. State, 699 S.W.2d 235, 238 (Tex. App.—
Austin 1985, pet. ref’d); see also Euziere, 648 S.W.2d at 702. The bond itself
satisfies the State’s burden of proving that appellant intentionally and knowingly
3
failed to appear in accordance with the terms of the release unless appellant can
establish evidence to the contrary. Solomon, 999 S.W.2d at 37; Richardson, 699
S.W.2d at 238; see also Euziere, 648 S.W.2d at 702; Burns, 958 S.W.2d at 488. If
appellant offers evidence that he did not have notice to appear, the State must
produce further evidence sufficient to justify a rational factfinder in finding that
appellant had actual notice, or engaged in a course of conduct designed to avoid
receiving notice. Etchison v. State, 880 S.W.2d 191, 192 (Tex. App.—Texarkana
1994, no pet.); Richardson, 699 S.W.2d at 238.
The facts here parallel Euziere, 648 S.W.2d at 702. The defendant in
Euziere was released pursuant to an instanter bond. Id. After several subsequent
court appearances, the defendant failed to appear as scheduled on July 31, 1978.
Id. The trial court declared his bond forfeited and issued a warrant; the defendant
was arrested and indicted for failure to appear. Id.
The defendant contended on appeal that the State did not prove he
intentionally and knowingly failed to appear in court on July 31, 1978. Id. At
trial, the State introduced the bail bond issued when defendant was first released
from custody in September of 1977. Id. That bond set out the terms and
conditions of defendant’s release, and directed defendant to appear instanter in the
court in which he was indicted. Id. The Court of Criminal Appeals stated: “This
language apprises appellant of his obligations to the court and sets forth the terms
and conditions of appellant’s release.” Id. Further, the instanter wording of the
bond provided defendant with sufficient and proper notice of when to appear. Id.
The Court concluded, “Since appellant had notice of the setting and since appellant
asserted ‘no reasonable excuse’ for his failure to appear, the evidence is sufficient
to prove that appellant intentionally and knowingly failed to appear in accordance
with the terms of his release.” Id.
4
In a case from this court, a defendant was released on a bond directing him
to make a personal appearance before the court “instanter.” Solomon, 999 S.W.2d
at 37. Defendant’s counsel testified that he wrote a letter notifying defendant of
the setting and date of his trial, but sent it to a different address than that listed on
the instanter bond. Id. The letter was returned unopened. Id. Defendant’s
attorney further testified that his secretary either “told defendant’s mother of the
setting or left a message on her answering machine notifying him of the date.” Id.
The court held that the instanter bond was a prima facie showing of notice by the
State, and the returned letter was merely evidence that defendant did not receive
that letter. Id. Further, the court rejected the defendant’s argument that the State
failed to meet its burden of proof simply because the court coordinator could not
testify to whether defendant received notice. Id. at 38.
Here, Mindy Ochsner, an employee of the Harris County district clerk’s
office, testified at trial regarding appellant’s district court and bond forfeiture files.
During Ochsner’s testimony, the State introduced appellant’s instanter bond into
evidence. The instanter bond stated in pertinent part:
THE CONDITION OF THIS BOND IS THAT THE DEFENDANT
HAS BEEN CHARGED WITH A Felony offense and to secure his
release from custody is entering into this obligation binding him to
appear before Dist[rict] Crim[inal Court] 176 County of Harris
County, Texas. NOW THEREFORE, IF THE SAID PRINCIPAL
SHALL WELL AND TRULY MAKE HIS PERSONAL
APPEARANCE BEFORE SAID COURT INSTANTER AS well as
before any other court to which the same may be transferred for any
and all subsequent proceedings that may be had relative to said charge
in the course of criminal actions based on said charge, and there
remain from day to day and term to term of said courts, until
discharged by the course of law, then and there to answer said
accusation against him . . .
The bond was signed by appellant on October 7, 2010, the date he was released
5
from custody.
During Ochsner’s testimony, the State also introduced the November 5,
2010 order appointing Luci Davidson as appellant’s trial counsel. The order stated
that appellant’s case was reset for December 8, 2010; the order was signed by
appellant. Ochsner testified that she did not witness appellant signing the order.
She also testified that, as part of the normal court process, an unrepresented
defendant typically receives notice of a reset date from the court coordinator;
counsel begins to control the interactions between a defendant and the court after
appointment. Neither party offered evidence as to how appointed counsel and
appellant interacted, and appellant’s appointed counsel did not testify at trial.
Appellant introduced a blank version of a single-page order appointing
counsel, corresponding to the signed and dated copy introduced by the State. The
blank version contained multiple color-coded copies of the single-page order, each
designated for a different party, including a copy designated for the defendant.
However, neither party presented information as to whether appellant received a
copy of the signed version introduced by the State. Appellant’s only other
evidence was the two reset forms showing that he appeared in court on the two
reset dates when he was unrepresented by counsel.
In this case, as in Euziere, it was undisputed that appellant was released on
an instanter bond, and that he returned to court multiple times following his
release. As in Solomon, there is no evidence that appellant lacked notice of the
court date when he signed the order appointing counsel; this order included the
December 8, 2010 court date. There is no evidence that his appointed counsel
failed to inform him of his court date, or that he did not receive a copy of the order
appointing counsel.
Based on this record, a rational jury could have found that appellant
6
intentionally and knowingly failed to appear in accordance with the terms of his
release. See Euziere, 648 S.W.2d at 702; see also Caudillo v. State, 541 S.W.2d
617, 618-19 (Tex. Crim. App. 1976) (instanter bond was sufficient to meet State’s
burden of proof when appellant’s testimony indicated that appellant had discussed
the setting date with one attorney, even though appellant’s other attorney testified
that he did not receive notice); Barrera v. State, 978 S.W.2d 665, 671 (Tex.
App.—Corpus Christi 1998, pet. ref’d) (evidence was sufficient to support
conviction for bail jumping where State introduced a copy of the notice of trial
setting that appellant acknowledged initialing).
Appellant misplaces his reliance on several cases in connection with his
argument that the State did not meet its burden of proof. Appellant first relies on
Fish v. State, 734 S.W.2d 741, 741-42 (Tex. App.—Dallas 1987, pet. ref’d). In
that case, the instanter bond was deficient because it demanded that defendant
appear “instanter,” but did not name the court in which defendant was supposed to
appear. Id. The State introduced no other evidence at trial that defendant had
actual notice of the court before which he was to appear. Id. at 742. The court of
appeals concluded that the instanter bond itself was evidence that defendant had no
notice of the hearing location, and that no rational jury could have found that
defendant intentionally and knowingly failed to appear in accordance with the
terms of his release. Id. at 743-44.
Fish is distinguishable because the instanter bond issued to appellant clearly
states the location for appellant’s future appearances, and the record reflects that
appellant appeared in the correct court more than once.
Appellant also relies on Bell v. State, 63 S.W.3d 529 (Tex. App.—Texarkana
2001, pet. ref’d). In Bell, the defendant appeared in court once after being released
on an instanter bond. Id. at 531. The bond did not state the date, location, or time
7
of his required appearance. Id. The State conceded that the blanks constituted
some evidence that defendant had no notice. Id. at 532. At a court appearance
after he was released on bail, defendant signed an “Appearance and Announcement
Form” stating the date and time of his next required appearance before the court.
Id. The State offered additional testimony by two witnesses that they and
defendant attempted to get to court, but were prevented from doing so by car
trouble. Id. There was no evidence that the defendant ever contacted the court, his
bondsman, or attorney, or returned to the correct county until he was arrested
elsewhere. Id. The court of appeals upheld defendant’s conviction because the
State provided evidence indicating that defendant had actual notice of the hearing,
despite the deficiency in the instanter bond. Id. at 533.
Finally, appellant relies on Walker, 291 S.W.3d at 117-20. In Walker, the
defendant testified that he had not received notice of his arraignment date and
offered evidence that he typically received mail at a post office box, rather than at
the home address where the district attorney’s office sent his notice. Id. at 119.
The notice was not returned as undeliverable, the bondswoman testified that she
spoke with defendant’s aunt on the phone, and defendant’s aunt confirmed that
defendant received the postcard. Id. The bondswoman never heard from
defendant, who did not appear on the set trial date. Id. A jury convicted the
defendant; the court of appeals upheld the conviction, recognizing that any
contradictions in the evidence were best resolved by the jury. Id. at 120.
Appellant asserts that Walker and Bell are analogous to the circumstances
here because the State does not have other evidence beyond the instanter bond.
Therefore, appellant contends that the State has failed to meet its burden of proving
appellant intentionally and knowingly failed to appear. This argument fails for two
reasons. First, the State does not have to produce evidence beyond a valid
8
instanter bond in the absence of any evidence that appellant did not have notice.
See Euziere, 648 S.W.2d at 702; Solomon, 999 S.W.2d at 37. Second, the State did
produce the order appointing trial counsel, which contained the next court date and
time, and was signed by appellant.
Viewing all of the evidence in the light most favorable to the verdict, we
conclude that a rational factfinder could have determined that appellant
intentionally and knowingly failed to appear in accordance with the terms of his
release. Accordingly, we overrule appellant’s first issue.
II. Charge Error
Appellant argues that the trial court erred by overruling his objection to the
definitions of “intentional” and “knowing” in the jury charge. According to
appellant, these definitions included unnecessary language, decreased the State’s
burden of proof, and caused harm.
In reviewing a jury charge, the court first determines whether error occurred.
Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005); Herrera v. State, 367
S.W.3d 762, 775 (Tex. App.—Houston [14th Dist.] 2012, no pet.). If the court
finds error, it then evaluates whether sufficient harm resulted from the error to
require reversal. See Ngo, 175 S.W.3d at 743; Herrera, 367 S.W.3d at 775.
A. Error
The third degree felony of bail jumping and failure to appear occurs when a
person (1) is lawfully released from custody with or without bail; (2) on a felony
charge; (3) on the condition that he subsequently appear in court on that charge;
and he (4) intentionally and knowingly; (5) fails to appear in court in accordance
with the terms of his release. Walker, 291 S.W.3d at 118; see Tex. Penal Code §
38.10(a); Burns, 958 S.W.2d at 488. Appellant challenges the following
9
definitions of “intentionally” and “knowingly” included in the jury charge:
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.
See Tex. Penal Code § 6.03(a), (b) (Vernon 2011).
Appellant asserts that bail jumping and failure to appear is solely a result-of-
conduct offense because it is defined in terms of one’s objective to produce a
specific result. He argues that engaging in conduct, which is the essence of a
nature-of-conduct offense, is not relevant in a result-of-conduct offense.
According to appellant, the jury could convict appellant under the court’s charge
merely because of the nature of his conduct and not because of any conscious
objective or desire to cause the result of his conduct. Appellant argues that this
provides an alternative theory of liability which lessens the State’s burden of proof
and makes bail jumping and failure to appear a strict liability offense, which it is
not. Thus, appellant asserts that the language in the jury charge caused him harm.
The State counters that the jury instructions were not erroneous because bail
jumping and failure to appear includes all three conduct elements. While agreeing
that the offense is defined in terms of one’s objective to produce a specific result,
the State asserts that the nature of the conduct (failing to appear in accordance with
the terms of a lawful release) is criminalized. The State also contends that the
circumstances surrounding the conduct (terms of release on bond that require such
an appearance) are what make otherwise innocent behavior an offense. Therefore,
10
the State argues that all three conduct elements were properly included in the
“intentional” and “knowing” definitions given to the jury.
For the sake of argument, we will assume without deciding that there was
error in the jury charge as appellant alleges. We must next determine whether the
alleged charge error cause appellant actual harm. Cook v. State, 884 S.W.2d 485,
491 (Tex. Crim. App. 1994); Rolle v. State, 367 S.W.3d 746, 757 (Tex. App.—
Houston [14th Dist.] 2012, pet. ref’d).
B. Harm
Our analysis of harm will differ depending on whether appellant preserved
the asserted charge error by objecting in the trial court. See Barrios v. State, 283
S.W.3d 348, 350 (Tex. Crim. App. 2009); Rolle, 367 S.W.3d at 757. If there is
error in the charge and appellant objected to the error at trial, reversal is required if
the error is calculated to injure the rights of the appellant, which has been defined
to mean that there is “some harm.” Barrios, 283 S.W.3d at 350; Rolle, 367 S.W.3d
at 757. Thus, properly preserved errors require reversal as long as the error is not
harmless. Barron v. State, 353 S.W.3d 879, 883 (Tex. Crim. App. 2011) (quoting
Arline v. State, 721 S.W.2d 348, 351 (Tex. Crim. App. 1986) (“[T]he presence of
any harm, regardless of degree, which results from preserved charging error, is
sufficient to require a reversal of the conviction.”)).
An error that was not objected to requires reversal only if it was a
“fundamental error” that was so egregious and created such harm that the
defendant did not have a fair and impartial trial. Barrios, 283 S.W.3d at 350;
Rolle, 367 S.W.3d at 757. Jury charge error is egregiously harmful if it affects the
very basis of the case, deprives the defendant of a valuable right, or vitally affects a
defensive theory. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007).
Egregious harm is determined on a case-by-case basis and is a difficult standard to
11
prove. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Martinez v.
State, 190 S.W.3d 254, 259 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).
In analyzing harm, we must consider the following four factors: (1) the
charge itself; (2) the state of the evidence, including contested issues and the
weight of the probative evidence; (3) arguments of counsel; and (4) any other
relevant information revealed by the trial record as a whole. Hutch, 922 S.W.2d at
171; Hill, 265 S.W.3d at 543 (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex.
Crim. App. 1984)). Neither the State nor the defense has a burden to show harm.
Warner v. State, 245 S.W.3d 458, 462 (Tex. Crim. App. 2008).
Because the harm analysis turns on whether charge error is preserved, we
must determine whether appellant objected in the trial court to the charge error he
now asserts on appeal. A party must present to the trial court a timely request,
objection, or motion stating the specific grounds for the ruling desired in order to
preserve a complaint for appellate review. Rothstein v. State, 267 S.W.3d 366, 373
(Tex. App.—Houston [14th Dist.] 2008, pet. ref’d); see Tex. R. App. P. 33.1(a).
Further, an appellant’s contention on appeal must comport with the specific
objection made at trial. Wilson v. State, 71 S.W.3d 346, 349 (Tex. Crim. App.
2002); Rothstein, 267 S.W.3d at 373.
1. Definition of “intentional”
We begin our analysis with respect to the allegedly erroneous inclusion of
nature-of-conduct language in the definition of “intentional” by determining
whether appellant preserved the error. The trial court gave the following definition
of “intentional” in the abstract portion of the jury charge:
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.
12
See Tex. Penal Code § 6.03(a). The court overruled trial counsel’s following
objection at the charge conference:
The additional objections that I have would be with regard to the
culpable mental state. I think this is a circumstances surrounding the
offense type situation. The definitional language in the court’s charge
regarding intentional conduct and knowing conduct includes language
other than the circumstances surrounding the conduct, so I’m
objecting to that, specifically with regard to the instruction paragraph
on intentional or acting intentionally with respect to the nature of his
conduct. I don’t believe this is a nature of his conduct oriented
offense, and so I’m asking the court to strike that language from the
charge and just have in there with regard to intentional — an
intentional culpable mental state the result of his conduct language.
While counsel began his objection with the statement “I think this is a
circumstances-surrounding-the-offense type situation,” his final sentence asked the
court specifically to remove the nature-of-conduct language and leave in the result-
of-conduct language. Since this request is aligned with his argument on appeal,
appellant properly preserved error as to the definition of “intentional” and some
harm to appellant will require reversal of his conviction.
Appellant argues that he was harmed by the charge error because the
extraneous language provided an alternative theory of liability which lessened the
State’s burden of proof.
To assess this contention, we first review the jury charge as a whole. Hill,
265 S.W.3d at 544. “In assessing the harm resulting from the inclusion of
improper conduct elements in the definitions of culpable mental states, we ‘may
consider the degree to which the culpable mental states were limited by the
application portions of the jury charge.’” Patrick v. State, 906 S.W.2d 481, 492
(Tex. Crim. App. 1995); Cook, 884 S.W.2d at 492 n.6. Here, the application
paragraph of the jury charge read:
13
Now, if you find from the evidence beyond a reasonable doubt that in
Harris County, Texas, Kendric Johnson . . . heretofore on or about the
8th day of December, 2010, did then and there unlawfully, after having
been lawfully released from custody with bail, on the condition that he
would subsequently appear in District Court Number 176 of Harris
County, Texas, on the 8th day of December, 2010, where he was
charged in Cause No. 1280578 with the felony offense of aggravated
robbery, intentionally or knowingly fail to appear in the aforesaid
court on the aforesaid date in accordance with the terms of his release,
then you will find the defendant guilty of bail jumping and failure to
appear . . . .
The relevant portion of the application paragraph of the jury charge in this case
authorized the jury to convict if it found that appellant “intentionally or knowingly
failed to appear in the aforesaid court . . . .” The culpable mental states directly
modify the phrase “fail to appear.” Therefore, the application portion did not, as
appellant contends, allow the jury to convict appellant “simply because he did not
appear as he should have, and not as a result of any conscious objective or desire
not to be present.”
The Court of Criminal Appeals addressed a similar claim in Hughes, 897
S.W.2d at 294-97. There, the defendant argued that the trial court erred in
overruling his objections to the jury charge and including the entirety of the Texas
Penal Code section 6.03 definitions of “intentional” and “knowing” in the jury
charge. Id. at 294; see Tex. Penal Code § 6.03(a), (b). The Hughes court held that
the trial court erred in including nature-of-conduct language in the jury charge
definitions because capital murder included only result-of-conduct and
circumstances-surrounding-conduct elements. Hughes, 897 S.W.2d at 295.
Appellant preserved the error by timely objecting at trial, so the court analyzed the
error for “some harm.” It found no harm because the application portion of the
charge provided guidance for the jury by pointing the jury to the appropriate
portions of the definitions. Id.
14
If failure to appear were a result-of-conduct offense as appellant claims, the
same conclusion would apply here. See also Herrera, 915 S.W.2d at 98. Nothing
in this charge emphasized the nature-of-conduct definition that appellant contends
was erroneous, and the application paragraph properly placed the culpable mental
states. See Coleman, 279 S.W.3d at 687 (“The ‘result of conduct’ mental state is
not a part of the application paragraph. We find no harm resulted from the court’s
inclusion . . . in the definitions section of the charge.”); Delgado, 944 S.W.2d at
499 (“Significantly, the ‘nature of conduct’ language used in the court’s definition
paragraphs was not repeated in the application paragraphs. We hold that this
instruction appropriately limited the overbroad language used in the court’s
definitions . . . .”).
Turning to the second factor, we examine the state of the evidence, including
contested issues and the weight of the probative evidence, for actual harm. The
only contested issue at trial was whether appellant had notice to appear.
The State relied on the instanter bond, which stated the name and location of
the trial court and directed appellant to appear “instanter,” as evidence that
appellant had notice to appear. As additional evidence, the State offered the order
appointing counsel, which was signed by appellant and included his next court date
to show appellant had actual notice of when and where to appear.
Appellant’s only evidence was his prior reset forms and a blank order
appointing counsel. He used these to argue to the jury that there was no evidence
that he received a copy of the order appointing counsel. Appellant also asserted
that it was possible that his appointed trial counsel had not communicated his court
date to him. To convict appellant, the jury had to decide whether appellant had
notice of his hearing based on the presented evidence. As discussed above, the
evidence was legally sufficient for a rational jury to convict appellant for bail
15
jumping and failure to appear. In this context, the jury was allowed to decide
whether appellant intentionally and knowingly failed to appear.
Third, we examine the arguments of counsel, which also turned on notice.
Trial counsel claimed that the State failed to prove beyond a reasonable doubt that
he had notice of his court date. Trial counsel emphasized that appellant’s
appointed counsel did not testify, and that appellant returned to court several times
while he was unrepresented by counsel, indicating that appellant did not receive
communication from the court once appointed counsel began to represent him.
Trial counsel stated in his closing argument:
[W]hen you go through the charge you’re going to see where it says a
person acts intentionally or with intent with respect to the nature of his
conduct or a result of his conduct if it’s his conscious objective or
desire to engage in the conduct or cause the result. They had to prove
that he knew that he was supposed to be here on that day, specifically
was given information with regard to that . . . And that he said,
consciously made the decision I’m not going . . . And I think their
proof failed with regard to notice . . . .
Trial counsel concluded that the State had to prove appellant “consciously made
the decision I’m not going. I’m not going to court that day.” He asked the jury to
decide whether appellant consciously decided not to appear. Because trial
counsel’s comments properly applied the culpable mental state to the alleged
failure to appear, the passing reference to nature as well as result of conduct did
not mislead the jury.
The State emphasized the instanter bond and the signed order appointing
counsel which contained the court setting date as satisfying its burden of proof
beyond a reasonable doubt. The State countered appellant’s claim that appellant
had less notice after receiving a court-appointed attorney by saying, “So what’s
more likely, that all of a sudden now the defendant has an attorney and now he
16
doesn’t know what to do, he doesn’t know to show up, even though he’s been
showing up? Or now he just understands the gravity of the situation? I would
argue to you that now he understands the gravity and that’s why he ran.” This
argument also emphasized to the jury the importance of deciding whether he had
notice of his court date, and thus intentionally failed to appear.
The fourth factor directs us to review the trial record as a whole for any
other relevant information. In this case, the jury heard witness testimony regarding
the purpose of an instanter bond, court procedure surrounding a defendant’s release
on bail, and the specific history of appellant’s release, subsequent appearances, and
failure to appear. The jury was given the opportunity to apply the law given in the
application portion of the charge to the facts as presented by both parties.
Reviewing the record as a whole, there is no other information contained within
the record to show sufficient harm from the trial court’s failure to limit the
definition of “intentional” to result-of-conduct. Based on the four factors, we
conclude that the alleged charge error was harmless.
2. Definition of “knowing”
We next address whether appellant was harmed by the definition of the
“knowing” mental state as provided in the jury charge. The trial court included
this definition in the jury charge:
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.
See Tex. Penal Code § 6.03(b). Appellant objected by saying:
The paragraph which defines acting with knowledge or knowingly
acting, again, includes language other than the circumstances
17
surrounding his conduct. I’d ask the Court to strike through the
definitional language in that paragraph regarding the nature of his
conduct. I don’t think it’s a nature of the conduct oriented offense.
Knowing in this context do I think it is a result of his conduct oriented
offense, when you’re talking about acting with knowledge, so I’d ask
that the Court strike the last sentence of that paragraph and only leave
in there person acts knowingly or with knowledge with respect to the
circumstances surrounding his conduct when he is aware that the
circumstances exist. In this case the circumstances we’re talking
about is notice from his lawyer that he was supposed to be back on
December 8, 2010.
The court overruled appellant’s objection.
A party fails to preserve error when the contention urged on appeal does not
comport with the specific complaint made at the trial court. Wilson, 71 S.W.3d at
349 (Tex. Crim. App. 2002); Rothstein, 267 S.W.3d at 373. On appeal, appellant
asserts that bail jumping and failure to appear is a result-of-conduct offense and
that including nature-of-conduct language in the definition was error. At trial,
appellant specifically requested that the court remove the language addressing
result of conduct as well as nature of conduct, and leave only the circumstances-
surrounding-conduct language. Appellant therefore failed to preserve error for
appellate review because his contention on appeal does not correspond to the
objection he made at trial. Wilson, 71 S.W.3d at 349; Rothstein, 267 S.W.3d at
373; see Tex. R. App. P. 33.1.
When jury charge error exists, but was not preserved for appeal, reversal is
mandated only if it was a “fundamental error” that was so egregious and caused
such harm that the defendant did not have a fair and impartial trial. Barrios, 283
S.W.3d at 350; Rolle, 367 S.W.3d at 757. A court determines egregious harm by
considering the same four factors that it considers in a “some harm” analysis. See
Warner, 245 S.W.3d at 461; Rolle, 367 S.W.3d at 759; Hill, 265 S.W.3d at 543.
18
Having already determined that inclusion of the expanded definition of the
“intentional” mental state constituted harmless error, we equally conclude that,
based on the four factors, the erroneous inclusion of the expanded definition of the
“knowing” mental state constituted harmless error. Accordingly, we overrule
appellant’s second issue.
III. Jury Argument
Appellant asserts that the trial court erred in overruling appellant’s objection
to the State’s closing argument when the State “improperly argued outside the
record that proof of an instanter bond provides prima facie evidence of the
appellant’s intentional and knowing failure to appear, thereby satisfying the State’s
burden of proof beyond a reasonable doubt.”
Proper jury argument falls within one of four general areas: (1) summation
of the evidence; (2) reasonable deduction from the evidence; (2) answer to
argument of opposing counsel; and (4) plea for law enforcement. Brown v. State,
270 S.W.3d 564, 570 (Tex. Crim. App. 2008). When jury argument falls outside
the approved areas, it will not constitute reversible error unless it is extreme or
manifestly improper, violative of a mandatory statute, or injects new facts harmful
to the accused into the trial proceeding. Temple v. State, 342 S.W.3d 572, 602-03
(Tex. App.—Houston [14th Dist.] 2010) aff’d, 390 S.W.3d 341 (Tex. Crim. App.
2013); see Brown, 270 S.W.3d at 570. To determine if the prosecutor made an
improper jury argument, the reviewing court must consider the entire argument in
context, and not merely isolated sentences. Rodriguez v. State, 90 S.W.3d 340,
364 (Tex. App.—El Paso 2001, pet. ref’d).
Appellant complains about the following argument the State made during its
rebuttal closing argument:
19
[THE STATE]: According to the Court of Appeals, folks, proof that
the accused —
[TRIAL COUNSEL]: Your Honor, I’m going to object to anything
according to the Court of Appeals. That’s outside the record.
THE COURT: That’s sustained.
[THE STATE]: Okay. The case law clearly states —
[TRIAL COUNSEL]: Your Honor, I’m going to object to anything
with regard to case law.
[THE STATE]: Judge, he argued about case law stating that it’s not
— prima facie proof does not constitute evidence beyond a reasonable
doubt. My argument is case law clearly states it is proof beyond a
reasonable doubt.
[TRIAL COUNSEL]: I’m going to object to —
[THE STATE]: Clearly says that.
[TRIAL COUNSEL]: — the sidebar also.
THE COURT: Don’t talk at the same time. Just argue within the
record, okay. Thank you.
[TRIAL COUNSEL]: And I’m going to ask for a ruling, Judge. I
made a specific objection, when he says according to case law, that’s
outside the record. I need to have a specific ruling on that.
THE COURT: Well, actually it’s invited argument.
[TRIAL COUNSEL]: No, ma’am. I was referring to his comment on
opening when he talked about the prima facie evidence from his
document. I was responding to his opening comment. That’s all it
was.
THE COURT: All right. Your objection is overruled. You may
proceed.
[TRIAL COUNSEL]: Thank you.
[THE STATE]: Yes, your Honor. The law states prima facie
evidence is given by this document. If an accused is under an
instanter bond, which this is, there’s prima facie evidence that he had
knowledge of the setting, he had notice. And that — that prima facie
evidence satisfies the State’s burden of proof beyond a reasonable
doubt unless there is evidence to the contrary.
20
[TRIAL COUNSEL]: Objection judge. That does not create proof
beyond a reasonable doubt.
* * *
THE COURT: . . . Your objection is overruled. You may continue.
[TRIAL COUNSEL]: Thank you.
[THE STATE]: Satisfied, but I went beyond that. So I’ve already
satisfied my burden, but it goes beyond that. I gave you a reset, and if
you look at that reset, on the reset, State’s Exhibit No. 1, it has
everything you need to know, the cause number, the court, the crime,
the defendant’s name, the date he was to appear, December 8, 2010,
and it even has his signature down there, all right. So not only do I
have evidence, prima facie evidence which satisfies my burden, but I
also have a document which he signed which has a date on it. And as
defense counsel pointed out in his own exhibit, the last page is the
defendant’s copy. So he had a copy of this reset form stating —
[TRIAL COUNSEL]: Object to that. That’s a misstatement of the
law. There’s no evidence to show he had that copy. That’s my whole
point, he did not.
THE COURT: Overruled.
[TRIAL COUNSEL]: Thank you.
To properly preserve error for appellate review, a party must object when improper
argument is made, and obtain a ruling on that objection. Johnson v. State, 233
S.W.3d 109, 114 (Tex. App.—Houston [14th Dist.] 2007, no pet.); see Wilson, 71
S.W.3d at 349; Tex. R. App. P. 33.1(a). The objection must be made at the earliest
possible opportunity. Espinosa v. State, 194 S.W.3d 703, 708 (Tex. App.—
Houston [14th Dist.] 2006, no pet.); see Wilson, 71 S.W.3d at 349; Turner v. State,
805 S.W.2d 423, 431 (Tex. Crim. App. 1991). Almost every right may be waived
by failure to object, even those of constitutional magnitude. Richardson v. State,
328 S.W.3d 61, 72 (Tex. App.—Fort Worth 2010, pet. ref’d); Solis v. State, 945
S.W.2d 300, 301 (Tex. App.—Houston [1st Dist.] 1997, pet. ref’d). The complaint
raised on appeal must comport with the objection made at trial. Wilson, 71 S.W.3d
21
at 349. Further, counsel must object each time the allegedly improper argument is
made. Temple, 342 S.W.3d at 602-03; Haliburton v. State, 80 S.W.3d 309, 315-16
(Tex. App.—Fort Worth 2002, no pet.); Briones v. State, 12 S.W.3d 126, 129 (Tex.
App.—Fort Worth 1999, no pet.); see Ethington v. State, 819 S.W.2d 854, 858
(Tex. Crim. App. 1991) (“Further, with two exceptions, the law in Texas requires a
party to continue to object each time inadmissible evidence is offered.”).
Appellant waived his right to complain about the State’s allegedly improper
jury argument in this case because he failed to object each time the State made the
allegedly improper jury argument. See Temple, 342 S.W.3d at 603; Espinosa, 194
S.W.3d at 708-09. During voir dire, the State stated:
And an instanter bond is, I’ll explain this in a second, is prima facie
evidence of a defendant knew his court date until other evidence is
presented showing the defendant did not have notice. . . . And what
prima facie evidence means, it means on its face. If I show that
instanter bond and prove it was the defendant that signed it or did
whatever to it, that means I have prima facie evidence that he had the
intention not to appear when he didn’t.
At the beginning of the State’s closing argument, the State argued:
We talked about two things in voir dire, one being that if I have
instanter paperwork, which is that bond paperwork with this — that’s
the prima facie case, that he not only had notice of the hearing, but
that if he didn’t appear it was a prima facie case of intentionally and
knowingly not appear unless there was evidence that he did not have
notice, and there is no evidence he did not have notice.
Appellant did not object. As set out above, appellant later objected during the
State’s rebuttal closing argument to the State’s allegedly improper jury argument
regarding prima facie proof of notice in an instanter bond.
But appellant again failed to object when the State later made the following
objectionable and allegedly improper argument:
22
So the question really becomes, folks, what does the evidence show?
And I would say the evidence is clear and uncontroverted. One, the
defendant made on his bond, prima facie evidence. That in itself is
enough to prove my burden. But I went beyond that and I gave you
the actual reset which he got a copy of which showed the date and had
a signature on it. So not only does the prima facie evidence satisfy the
burden, but I went beyond that and said, he actually had notice.
When appellant allowed the State to make the complained of argument on three
separate occasions in front of the jury without objection — twice before objecting
and again after objecting — appellant failed to preserve error for review.
Accordingly, we overrule appellant’s third issue.
Conclusion
Having overruled appellant’s three issues, we affirm the trial court’s
judgment.
/s/ William J. Boyce
Justice
Panel consists of Justices Boyce, Jamison and Busby.
Publish — Tex. R. App. P. 47.2(b).
23