Walk v. State

OPINION ON MOTION FOR REHEARING

By his motion for rehearing, appellant argues that our analysis of his fourth point of error was not complete. Appellant, by his fourth point of error, urged that the trial court erred in failing to instruct the jury on the essential element of knowledge of the duties imposed by Local Government Code section 171.003. In our original opinion, we determined that appellant did not preserve this point of error for appellate review.

Appellant contends that we should have included in our analysis a determination of whether the lack of a proper objection and failure to include his knowledge instruction to the charge resulted in his receiving a fundamentally unfair trial. We agree that we failed to address appellant’s “egregious harm” complaint, will now address the complaint, and ultimately overrule appellant’s motion for rehearing.

If no proper objection was made at trial, the accused must claim that the trial court fundamentally erred. Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1984). Appellant will obtain a reversal only if egregiously harmed by an error that was calculated to injure the rights of appellant to the extent that he has not had a fair and impartial trial. Id. at 172. In determining whether appellant was egregiously harmed, we review the entire jury charge, the state of the evidence, the contested issues and the weight of probative evidence, the argument of counsel, and any other relevant information revealed by the record. Id. at 171.

In reviewing the court’s charge to the jury, the evidence presented, and other parts of the record, we conclude that appellant received a fair and impartial trial and was not egregiously harmed by the lack of his desired knowledge instruction. We note that the court’s charge tracked the information and correctly instructed the jury on the element of knowledge. The court’s charge addressed the issue of appellant’s knowledge sufficiently. Accordingly, we overrule appellant’s motion for rehearing.