Gonzalez v. State

• Decision Date: 28 October 2020
• Docket Number: NO. PD-0572-19,PD-0572-19
• Citation: 610 S.W.3d 22
• Court: Texas Court of Criminal Appeals
• Parties: Victor Ortiz GONZALEZ, Appellant v. The STATE of Texas

610 S.W.3d 22

Victor Ortiz GONZALEZ, Appellant

v.The STATE of Texas

NO. PD-0572-19

Court of Criminal Appeals of Texas.

Delivered: October 28, 2020

Robert K. Gill, for Appellant.

Steven W. Conder, Fort Worth, for State of Texas.

OPINION

Slaughter, J., delivered the opinion of the Court in which Keasler, Hervey, Richardson, Yeary, and Keel, JJ., joined.

Is a defendant egregiously harmed by an erroneous jury charge if the error at issue effectively amounts to nothing more than a formatting defect? In this case, the unobjected-to jury instructions tracked the statutory language and allowed for conviction for an intentional, knowing, or reckless aggravated assault on a public servant. The indictment, however, alleged only an intentional or knowing aggravated assault on a public servant. We conclude that erroneously including recklessness in the jury charge application paragraph which tracked the statutory language rather than the indictment's language was, under the facts of this case, a mere formatting defect. This defect did not cause egregious harm here because: (1) the record reflects that the parties and the trial court anticipated that the jury would consider the reckless culpable mental state; (2) our precedent allows recklessness to be submitted as a lesser-included-offense instruction under these circumstances; (3) the inclusion of recklessness in the application paragraph rather than in a separate lesser-offense instruction did not substantively affect the potential theories of liability upon which the jury could convict Appellant; and (4) reckless aggravated assault on a public servant carries the same range of punishment as the charged intentional or knowing aggravated assault on a public servant. We, therefore, reverse the judgment of the court of appeals and remand this case to that court for further proceedings.

I. Background and Procedural History

Several officers were dispatched to locate a vehicle carrying stolen merchandise. The merchandise had been equipped with a tracking device and placed in a "bait" car before being stolen. Using the tracking device, the officers traced the merchandise to a Hummer driven by Appellant. After observing the Hummer commit a traffic violation, the officers initiated a traffic stop. Appellant attempted to flee but ran into a dead end in an apartment complex's parking lot. Two police cars pulled up closely on either side of the Hummer to prevent Appellant from getting out. As Officer Taylor Rogers got out of his patrol car to arrest Appellant, Appellant reversed and accelerated. The Hummer collided with the side of a patrol car and injured Officer Rogers. After successfully reversing away from the officers, Appellant sped off, crashed the Hummer into a nearby structure, and then fled on foot.

Appellant was eventually arrested and charged with aggravated assault of a public servant with a deadly weapon. See TEX. PENAL CODE §§ 22.02(a)(2), (b)(2)(B).¹ Although the aggravated assault statute permits conviction for a first-degree felony where the actor intentionally, knowingly, or recklessly causes bodily injury to a public servant and uses or exhibits a deadly weapon during the assault, see id. §§ 22.01(a)(1), 22.02(a)(2), (b)(2)(B),² the indictment omitted recklessness as a possible culpable mental state. Instead, the indictment alleged only that Appellant intentionally or knowingly caused bodily injury to Officer Rogers and that he used or exhibited a deadly weapon, to-wit: the Hummer.³

Despite the indictment's omission of recklessness as an available culpable mental state, both the State and Appellant addressed at trial, without objection, all three statutorily-permissible culpable mental states—intentionally, knowingly, and recklessly—in voir dire and in closing arguments. Likewise, rather than tracking the indictment's language, the jury charge's abstract and application paragraphs tracked the statutory language and allowed the jury to convict Appellant if he intentionally, knowingly, or recklessly caused bodily injury to Officer Rogers while using or exhibiting a deadly weapon.⁴ The record does not contain any discussion between the trial judge and parties regarding the inclusion of recklessness in the charge, and Appellant did not object to the inclusion of the unindicted culpable mental state. The charge included an instruction on second-degree felony aggravated assault with a deadly weapon (e.g., not against a public servant, see TEX. PENAL CODE § 22.02(a)(2) ), but aside from this, no other lesser-included offense instructions were discussed or included in the charge. The jury ultimately convicted Appellant of the charged offense, found the single enhancement paragraph true, and assessed Appellant's punishment at forty-five years’ imprisonment plus a $10,000 fine.

On appeal, Appellant complained that the jury charge was erroneous because of its inclusion of the unindicted culpable mental state of recklessness.⁵ The State conceded that the charge was erroneous in this respect, and Appellant conceded that he had not objected to the error. Thus, the court of appeals’ analysis focused solely on whether Appellant was egregiously harmed by the error.

Applying the four-factor framework from Almanza v. State⁶ for evaluating harm in this context, the court of appeals concluded that the factors overall weighed in favor of finding egregious harm. Gonzalez v. State , No. 02-18-00179-CR, 2019 WL 2042573, at *6 (Tex. App.—Fort Worth May 9, 2019) (mem. op., not designated for publication). The court concluded that "by charging the jury on an un-indicted culpable mental state and by arguing to the jury that recklessness was sufficient to convict Appellant, especially where Appellant's mental state was a disputed fact issue, the charge egregiously harmed Appellant by lowering the State's burden of proof." Id. Accordingly, it reversed Appellant's conviction for aggravated assault on a public servant and remanded the case to the trial court for further proceedings. Id.

II. Analysis

Inclusion of the culpable mental state of recklessness in a jury charge application paragraph for aggravated assault causing bodily injury is error when recklessness is omitted from the indictment. Such error is avoided, however, if reckless aggravated assault is instead included as a standalone lesser-included-offense instruction. The question here is whether the erroneous inclusion of recklessness in the application paragraph, rather than as a separate lesser-included-offense instruction causes egregious harm.⁷ Relying in part on our reasoning and holdings in Reed v. State⁸ and Hicks v. State ,⁹ we hold that such error is a mere formatting defect that did not substantively affect the jury's consideration of Appellant's case and as such did not cause egregious harm. Therefore, we reverse the court of appeals’ finding of egregious harm.

A. Applicable Law for Evaluating Egregious Harm

The standard of review for jury-charge error depends on whether the error was preserved. Jordan v. State , 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) ). If error was preserved with a timely objection, then such error is reversible if it caused "some harm." Id. Conversely, when there is jury-charge error but the defendant fails to object, as is the case here, we must determine whether the error caused the defendant "egregious harm." Id.

"Errors that result in egregious harm are those that affect ‘the very basis of the case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’ " Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (quoting Hutch v. State , 922 S.W.2d 166, 171 (Tex. Crim. App. 1996) ); see also Chambers v. State, 580 S.W.3d 149, 154 (Tex. Crim. App. 2019) (stating that egregious harm occurs when the error "created such harm that the appellant was deprived of a fair and impartial trial"). "Under both [the some harm and egregious] harm standards, the appellant must have suffered some actual—rather than merely theoretical—harm." Id. ; see also Ngo , 175 S.W.3d at 750 ("Under the Almanza standard, the record must show that a defendant has suffered actual, rather than merely theoretical, harm from jury instruction error."). In determining whether there was egregious harm, we ordinarily evaluate the entire record in light of Almanza ’s four factors (the entirety of the charge, the state of the evidence, the arguments to the jury, and any other relevant information). French v. State, 563 S.W.3d 228, 237 (Tex. Crim. App. 2018). In some instances, however, a single consideration may persuade us that the risk of harm is so minimal that it precludes a finding of egregious harm. See id. at 239 (where risk of harm is so small that it "may properly be characterized as not ‘remotely significant’ ... any harm resulting from the error is only theoretical harm"). This case presents such a situation.

B. Discussion of Reed v. State and Hicks v. State

In their arguments to this Court, the parties focus on two of our prior decisions: Reed v. State , 117 S.W.3d 260, and Hicks v. State , 372 S.W.3d 649. Although Reed and Hicks are both cases addressing error rather than harm, they inform our analysis here because the nature of the error at issue in this case affects our harm analysis.

In Reed , as in the instant case, the indictment for aggravated assault alleged only the culpable mental states of intentional or knowing, but the jury charge's application paragraph allowed for a conviction based on intentional, knowing, or reckless culpable mental states. Reed , 117 S.W.3d at 260-61. Reed held that the jury charge was erroneous because, although the aggravated assault statute would permit a conviction based on recklessness, the indictment had not alleged it. Id. at 264. Thus, by including the unindicted reckless culpable mental state in the application paragraph for the charged offense, the instructions raised the possibility that the...