                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   Nos. 07-18-00327-CR
                                        07-18-00328-CR
                                        07-18-00329-CR


                          JACOB ALAN EDGAR, APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                           On Appeal from the 108th District Court
                                     Potter County, Texas
  Trial Court Nos. 73,480-E, 73,481-E, 73,482-E, Honorable Douglas R. Woodburn, Presiding

                                    January 24, 2020

                            MEMORANDUM OPINION
                     Before QUINN, C.J., and PARKER and DOSS, JJ.

      Appellant, Jacob Alan Edgar, appeals his convictions for unlawful possession of a

firearm by a felon, aggravated assault with a deadly weapon, and burglary of a habitation

with intent to commit other felony. Through three issues, he contends that 1) his rights

pursuant to the 5th, 6th and 14th Amendments to the U.S. Constitution, Art. 1, Section 10

of the Texas Constitution and Articles 1.04 and 1.05 of the Texas Code of Criminal

Procedure were violated, 2) the evidence was insufficient to prove he committed
aggravated assault during his burglary of a habitation, and 3) a variance between the

indictment, jury charge, and verdict form denied him due process.                We modify the

judgment and affirm.

       Background

       Appellant was indicted for being a felon in possession of a firearm in cause number

73,480-E (480), committing aggravated assault with a deadly weapon upon Nicole Baker

in cause number 73,481-E (481), and burglarizing the habitation of Pamela King and

committing aggravated assault in cause number 73,482-E (482).1 Approximately two

months before trial, appellant’s appointed defense counsel (Warner) filed identical

motions to withdraw in each of the three cases. He alleged therein that he 1) had good

cause to withdraw, 2) that cause consisted of a “personality conflict with” appellant, 3) “no

longer desire[d] to represent,” and 4) could not “adequately represent” appellant due to

the conflict. The record does not reflect whether the trial court convened a hearing on the

motions. It does illustrate, though, that the trial judge denied the motions filed in causes

480 and 482 and granted that filed in 481 the day after the motions were filed. The

decision to grant Warner leave to withdraw was followed by no other order appointing

new counsel or reinstating Warner.

       About two months later, Warner moved to have the jury assess punishment in all

three cases. Trial in all three cases began on that same day. During the proceeding, no

one mentioned the order in cause 481 granting Warner leave to withdraw. Nor did

appellant attempt to represent himself regarding the accusations levied in 481. Nor did




       1Appellant was also charged with an offense in trial court cause number 74,114. However, the
cause was not appealed and therefore not before us.

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alternate counsel appear on behalf of appellant in that cause. Simply put, all, including

the trial court, acted as if Warner were appellant’s counsel in all three proceedings.

         As trial progressed, evidence was admitted illustrating that appellant, a convicted

felon, first shot a person named Dallas Whipple multiple times. In fleeing the scene,

appellant broke through a neighbor’s door with gun in hand. The neighbor, Pamela King,

testified she feared for her life upon hearing the crash and seeing appellant and his gun.

Her reaction to his presence and her developing fear came rather quickly. She struck

and kicked him.       That resulted in appellant resuming his flight with gun in hand,

encountering Baker outside, pointing the firearm at her, running into her house, and hiding

in a bedroom. He was found and captured in the bedroom. The jury found him guilty of

all three charges.

         Issue One – Denial of Defense Counsel’s Motions to Withdraw

         Through his first issue, appellant contended the trial court violated his

constitutional rights by denying trial counsel’s motions to withdraw. We overrule the

issue.

         Why only one of three motions to withdraw was granted is not reflected within the

appellate record. Similarly unmentioned is why the two orders denying the motions in

480 and 482 contained the undated typed word “DENIED” in the signature line while the

order in 481 contained the judge’s signature and an accompanying date. Presumably,

the trial court knew of all three, but whether he acted upon all of them on the same date

is unclear.

         Nevertheless, appellant believed his fundamental constitutional rights to adequate

counsel and due process were violated when the trial court denied leave to withdraw in

480 and 482 while granting leave in 481. The constitutional rights in question implicate

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the 5th, 6th and 14th Amendments to the U.S. Constitution, as well as Art. 1, Section 10

of the Texas Constitution. His rights under Articles 1.04 and 1.05 of the Texas Code of

Criminal Procedure were also denied him, purportedly. Aside from the due process

contention, no others were substantively developed, however. That is, aside from his

argument about being denied due process, none of the allusions to other constitutional

or statutory rights were accompanied by any explanation as to how they were denied him.

Consequently, that portion of the issue is inadequately briefed and, therefore, waived.

Jordan v. State, No. 07-17-00324-CR, 2019 Tex. App. LEXIS 783, at *4–5 (Tex. App.—

Amarillo Feb. 5, 2019, pet. ref’d) (per curiam) (mem. op., not designated for publication)

(stating that when citation and argument are missing, the topic has been inadequately

briefed and waived).

        As for the matter of due process, appellant suggested the right obligated the trial

court to inquire into the “conflict of interest” asserted by defense counsel and cited Suniga

v. State, No. AP-77,041, 2019 Tex. Crim. App. Unpub. LEXIS 128, at *7–8 (Tex. Crim.

App. Mar. 6, 2019) (per curiam) (op. on reh’g) (not designated for publication) in support

of the contention. Yet, nothing was said of due process in the motions to withdraw. Nor

did appellant object to Warner’s continued representation in all three cases, much less

assert that it or the trial court’s action viz-a-viz the motions denied him due process.2 So,

this alleged ground for reversal was waived, as well. Smith v. State, No. 07-99-0478-CR,

2000 Tex. App. LEXIS 2835, at *5 (Tex. App.—Amarillo Apr. 24, 2000, pet. ref’d) (not




        2 The same is true of the other constitutional and statutory rights he mentioned in issue one. The

motions to withdraw alluded to none of them, and no one objected to Warner’s continued representation of
appellant in any of the cases.

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designated for publication) (holding that appellant’s due process arguments were waived

because they were not raised at trial).

       Yet, even if preserved, we note that Suniga dealt with trial counsel purporting to

act under a “conflict of interest.” No doubt, “[o]nce a possible conflict of interest is brought

to the trial court’s attention by either a pre-trial motion or trial objection, the court has a

constitutional obligation to take adequate steps to ascertain whether the risk of the conflict

of interest is too remote to warrant remedial action.” Suniga, 2019 Tex. Crim. App. Unpub.

LEXIS 128, at *7–8; accord Routier v. State, 112 S.W.3d 554, 581 (Tex. Crim. App. 2003)

(stating that when either the appellant or his attorney brings a potential conflict of interest

to the attention of the trial court, the latter has an obligation to investigate it). Here,

though, Warner did not allege that he had a “conflict of interest.” Rather, he averred that

there existed an undetailed “personality conflict” between himself and appellant.

       Conflicts of interest exist when ““counsel is required to make a choice between

advancing his client’s interest in a fair trial or advancing other interests (perhaps his own)

to the detriment of his client’s interest.’“ Routier, 112 S.W.3d at 582 (quoting James v.

State, 763 S.W.2d 776, 779 (Tex. Crim. App. 1989)). To the extent that they may

legitimize a request to withdraw, the same is not generally true of a personality conflict

between counsel and attorney. Indeed, our Court of Criminal Appeals noted as much in

King v. State, 29 S.W.3d 556 (Tex. Crim. App. 2000), when observing that personality

conflicts and disagreements over trial strategy are typically not valid grounds for

withdrawal. Id. at 566. So, given that 1) the conflict between trial counsel and appellant

was being labelled one of “personality” as opposed to “interest,” 2) nothing of record

illustrates the circumstances underlying the personality conflict and whether it actually

arose to a conflict of interest, 3) Suniga spoke of “conflicts of interest” and not personality,

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4) personality conflicts normally do not justify withdrawal, and 5) the mere chance of a

possible conflict of interest is not enough to require a hearing on a motion to withdraw,

we cannot say that appellant carried his burden to establish that the trial court denied him

due process when failing to investigate the conflict before denying the motions in 480 and

482. See Hobbs v. State, 359 S.W.3d 919, 927 (Tex. App.—Houston [14th Dist.] 2012,

no pet.) (stating that the mere possibility of a conflict of interest is not sufficient to require

a hearing on a motion to withdraw). But, we remain puzzled about why leave was granted

in one case and not the others.

       Issue Two – Evidence Insufficient to Prove Aggravated Assault

       Appellant next contended that the evidence was insufficient to support his

conviction in cause number 482. The crime for which he was convicted, according to the

judgment, was “Burglary Habitation Intend Other Felony.” Through the indictment, the

State alleged that he had “intentionally or knowingly entered a habitation, without the

effective consent of the owner . . . KING, and committed the felony offense of Aggravated

Assault with a Deadly Weapon.” The evidence allegedly is insufficient to establish guilt

because it failed to illustrate he pointed the gun at King, verbally threatened her, physically

assaulted her, laid a hand on her, or tried to commit any other criminal offense aside from

breaking down her door and entering her house for a brief period. We overrule the issue.

       A person commits burglary if, without the effective consent of the owner, he enters

a habitation with the intent to commit a felony, theft, or an assault. See TEX. PENAL CODE

ANN. § 30.02(a)(1) (West 2019). The crime is punishable as a felony where the accused

burglarized the habitation and a) entered with the intent to commit a felony other than

felony theft or b) committed or attempted to commit a felony other than felony theft. See



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id. § 30.02(d). The felony appellant allegedly committed upon entering the home was

aggravated assault.

         Aggravated assault has two components, they being assault coupled with an

aggravating factor. Id. § 22.02(a) (West 2019). One commits assault by, among other

things, intentionally or knowingly threatening another with imminent bodily injury. Id.

§ 22.01(a)(2).   The aggravating factors which elevate assault to aggravated assault

consist of proof either that the bodily injury was “serious,” id. § 22.02(a)(1), or that the

accused used or exhibited a deadly weapon during the assault. Id. § 22.02(a)(2).

Appellant questioned whether the State proved the component of assault itself.

         It has long been true that threats of imminent harm may be conveyed by word or

act. Flander v. State, No. 05-16-01356-CR, 2017 Tex. App. LEXIS 11765, at *5 (Tex.

App.—Dallas Dec. 19, 2017, pet. ref’d) (mem. op., not designated for publication) (quoting

De Leon v. State, 865 S.W.2d 139, 142 (Tex. App.—Corpus Christi 1993, no pet.)).

Moreover, the accused’s demeanor and his possession of a weapon are influential in

evaluating the existence of such a threat. Id. As said in De Leon, the mere presence of

a deadly weapon, under proper circumstances, may be enough to constitute the requisite

threat of imminent bodily injury. De Leon, 865 S.W.2d at 142. Indeed, the accused need

not necessarily point the weapon at the victim or verbally threaten him or her. Flander,

2019 Tex. App. LEXIS 11765, at *6 (describing precedent holding that an assault

occurred even though the defendant did not point the gun or utter verbal threats). For

instance, a victim hearing a gun shot, witnessing the accused attempting to break down

the door, fearing for her life, and fleeing as the defendant gave chase was sufficient to

prove assault in Young v. State, 993 S.W.2d 390, 391 (Tex. App.—Eastland 1999, no

pet.).

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         Here, we have evidence illustrating that the victim (King) 1) just returned home, 2)

saw an unknown person (appellant) skulking in a neighbor’s yard, 3) heard appellant

crash through her own door, 4) saw appellant rush into her home with gun in hand, and

5) feared for her life. Those circumstances may not be identical to the ones in Young.

They, nonetheless, suffice as some evidence permitting a rational juror to conclude

beyond reasonable doubt that appellant committed assault by intentionally or knowingly

threatening King with imminent bodily injury. He need not have touched her. Nor need

he have pointed the weapon at her or uttered verbal threats. And, because the firearm

he held while barging into the home was and is a deadly weapon, see TEX. PENAL CODE

ANN § 1.07 (a)(17)(A) (West Supp 2019) (defining deadly weapon as “a firearm”), we

cannot but conclude that the State proved the elements of aggravated assault, beyond

reasonable doubt.

         Issue Three – Variance between the Indictment and the Jury Charge

         Appellant raised the topic of variance through his last issue. He believed that one

arose between the indictment, jury charge, verdict form, and judgment. That is, the crime

described in the indictment and jury charge allegedly differed from the crime described in

the verdict form and judgment. Thus, “the jury was not correctly informed as to what legal

standard, they should base their deliberations,” or so he posited. And, this variation

allegedly allowed the jury to arrive at a less than unanimous verdict. We overrule the

issue.

         The variance concerns cause number 482.          Again, the State alleged in the

respective indictment that appellant “intentionally or knowingly entered a habitation,

without the effective consent of the owner . . . KING, and committed the felony offense

of Aggravated Assault with a Deadly Weapon.” (Emphasis added). The jury charge

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submitted to the jury during the guilt innocence phase somewhat deviated from the

highlighted language within its opening paragraph. There, the trial court informed the jury

that “[t]he defendant, JACOB EDGAR, stands charged by indictment with the offense of

Burglary of Habitation with Intent to Commit Other Felony.” As can be seen, the

passage “committed the felony offense of aggravated assault with a deadly weapon” was

replaced with the phrase “intent to commit other felony.” Nonetheless, the application

paragraph, which is the “‘heart and soul’” of the jury charge, Vasquez v. State, 389 S.W.3d

361, 366–67 (Tex. Crim. App. 2012), mirrored the language within the indictment.

Through it, the trial court instructed the jurors to find appellant “guilty of Burglary of a

Habitation as charged in the indictment,” if they “find from the evidence beyond a

reasonable doubt that . . . [he] did then and there intentionally or knowingly enter a

habitation, without the effective consent of . . . King the owner thereof, and committed

the felony offense of Aggravated Assault with a Deadly Weapon.”                 (Emphasis

added). Yet, in the verdict form accompanying the jury charge, the trial court returned to

the use of “with intent to commit other felony” in lieu of “committed . . . aggravated

assault.”

       No doubt, the phrase “intent to commit other felony” differs from “committed the

felony offense of aggravated assault with a deadly weapon.” No doubt, the “other felony”

alluded to in the former need not be the “aggravated assault” mentioned in the latter. And,

that seems to be the crux of appellant’s complaint.

       Greater care in reading the indictment, jury charge, and verdict form would have

avoided the circumstance before us. Yet, the variance and any purported harm arising

therefrom was cured by the phrase “as charged in the indictment.” Not only did it appear

in the application paragraph of the charge but also in the verdict form. And, including

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such a reference cures complaints like those at bar where the choices in the verdict form

limit the decision to finding appellant either not guilty or guilty of the crime “as charged in

the indictment.” Jason v. State, 589 S.W.2d 447, 451–52 (Tex. Crim. App. 1979) (so

finding where the indictment alleged aggravated rape of a child, the court charged the

jury on aggravated rape of a child, and the verdict form read, “‘We, the jury, find the

defendant guilty of the offense of rape of a child [a]s charged in the indictment’”); Henley

v. State, No. 01-94-00067-CR, 1995 Tex. App. LEXIS 1718, at *4 (Tex. App.—Houston

[1st Dist.] 1995, no pet.) (not designated for publication) (so holding “because the verdict

also included the catch-all phrase ‘as charged in the indictment’”).

       As for the judgment in 482 reflecting that appellant was convicted of Burglary of a

Habitation with the Intent to Commit Other Felony, we have the authority to modify it to

speak the truth as illustrated by the record. TEX. R. APP. P. 43.2(b). Bigley v. State, 865

S.W.2d 26, 27–28 (Tex. Crim. App. 1993). Therefore, we modify the trial court’s judgment

to correctly show appellant was convicted of burglary of a habitation and committing the

felony offense of aggravated assault with a deadly weapon. Being so modified, the

judgment is affirmed.


                                                           Brian Quinn
                                                           Chief Justice



Do not publish.




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