                                  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
