AFFIRM; and Opinion Filed August 19, 2016.




                                              Court of Appeals
                                                               S     In The


                                       Fifth District of Texas at Dallas
                                                           No. 05-15-01009-CR

                                              JOHNNY LEE CHAPIN, Appellant
                                                          V.
                                              THE STATE OF TEXAS, Appellee

                                    On Appeal from the 291st Judicial District Court
                                                 Dallas County, Texas
                                         Trial Court Cause No. F-1476200-U

                                             MEMORANDUM OPINION
                                         Before Justices Bridges, Evans, and O’Neill 1
                                                 Opinion by Justice O’Neill
             A jury convicted Johnny Lee Chapin of family violence assault by impeding breath or

circulation with a previous family violence conviction, a second degree felony. During the

punishment phase, appellant stipulated to three prior convictions, and the jury sentenced him to

twenty-five years in prison. In five issues, appellant argues: (1) the evidence is insufficient to

prove he impeded the normal breathing of the complaining witness; (2) the trial court erred by

admitting evidence of a prior family violence conviction at the guilt/innocence phase of trial; (3)

the guilt/innocence jury charge erroneously failed to limit the mental state definitions to the

applicable conduct elements of the indicted offense; (4) the guilt/innocence jury charge




1
    The Honorable Michael J. O’Neill, Justice of the Court of Appeals for the Fifth District of Texas—Dallas, Retired, sitting by assignment.
erroneously included a definition of reasonable doubt; and (5) the trial court lacked jurisdiction

due to the absence of written transfer orders. We affirm the trial court’s judgment.

                                      I. BACKGROUND

       Johnny Lee Chapin was married to Louise Chapin. At trial, Louise testified that they

were separated and she lived with her mother. Louise was four months pregnant. Even though

she and appellant were separated, Louise asked him to go to a doctor’s appointment with her

because the doctor was going to give her test results on whether she had ovarian cancer. Steven,

their seven-month-old son, was also with them.          As Louise drove them home after her

appointment, appellant began questioning why this appointment did not take as long as a

previous appointment he had not attended. He accused Louise of “seeing somebody” and began

yelling at her. He punched her twice on the side of her face and threatened to break her jaw.

Although the car was traveling at sixty miles-per-hour, appellant shifted the car from drive to

park, causing the car to stop abruptly in the highway. Louise put the car back in drive but the car

did not move. She was finally able to get the gears to engage and inched over to the side of the

highway. She told appellant to get out of the car, but he refused. Louise drove to her mother’s

house because she knew people were there. As they approached the house, appellant started

yelling at Louise again and tried to grab the steering wheel. The car swerved, hit a pothole, and

came to a stop in front of her mother’s house.

       Louise testified that appellant started yelling that he was going to take their seven-month-

old son with him. She grabbed the car keys and jumped out of the car to get Steven. But as she

tried to get Steven unbuckled from his car seat, appellant wrapped his right arm around her neck

and started choking her. Louise testified she could not even breathe enough to scream. She said

her sister saw what was going on and ran to her rescue. Appellant was trying to grab the car

keys but Louise threw them as far as she could, into her mother’s yard. Louise testified that

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appellant had her in the choke hold for at least thirty seconds to a minute. She told the jury that

while he was choking her, she wondered whether this was it and whether this was killing her

unborn child. As soon as appellant let go, she grabbed Steven and ran for the house. She

testified she had to gasp for air, her neck was sore, and it was hard for her to swallow. While

Louise called 911, appellant broke out the windows of her car with a tire iron and drove away in

his truck.

        Louise’s sister, Terrie Patton, testified that she was in front of her mother’s house when

she saw her sister’s car drive up and come to a complete halt in the road. As she watched, the

car turned and hit the ditch where there is a large hole. Terrie testified that Louise got out of the

front driver’s side door of the car and went to the back driver’s side door, directly behind her.

Meanwhile, appellant got out of the front passenger’s side door and came around the car to the

back driver’s side door. Terrie was already walking toward the car when she saw her sister

throw her keys into the yard. At that point, Terrie knew something was not right and started for

the gate. She saw appellant behind Louise, and he had one arm around her neck. With his other

hand, he was holding Louise’s wrist so Louise could not move his arm. Terrie testified that her

sister was not making a sound. Terrie screamed at appellant until he let go of Louise. Louise

caught her breath, grabbed Steven, and ran inside the house. Terrie watched appellant go across

the street, get in his truck, and pull out of the driveway. He stopped his truck, got out, and broke

out both windows on the driver’s side of Louise’s car. He then got back in his truck and left.

        Amber Guyger, an officer with the Dallas Police Department, testified that she was

dispatched to 8634 Cardella Avenue, Dallas, Texas, on a family violence call. She talked to

Louise Chapin. Officer Guyger described Louise as afraid, scared, and frantic. She said that

Louise was afraid that appellant would come back. Officer Guyger obtained statements from

Louise and her sister and took photographs of Louise’s injuries. Although Officer Guyger noted

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red marks on Louise’s arm, she did not see any marks on Louise’s neck. Officer Guyger saw a

car parked on the side of the street with broken windows.

       Appellant was arrested and charged with assault, impeding the normal breathing of a

family member, with a previous conviction for family violence assault.           A jury convicted

appellant as charged. After appellant stipulated to three enhancement paragraphs, the jury

sentenced him to twenty-five years in prison. This appeal followed.

                                        II. DISCUSSION

A. Sufficiency of the Evidence

       In his first issue, appellant argues the evidence is insufficient to prove beyond a

reasonable doubt that he impeded his wife’s breathing.         We review the sufficiency of the

evidence under the standard set out in Jackson v. Virginia, 443 U.S. 307 (1979). Acosta v. State,

429 S.W.3d 621, 624 (Tex. Crim. App. 2014). We examine all the evidence in the light most

favorable to the verdict and determine whether any rational trier of fact could have found the

essential elements of the offense beyond a reasonable doubt. Jackson, 443 U.S. at 319; Acosta,

429 S.W.3d at 624–25. This standard recognizes “the responsibility of the trier of fact fairly to

resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable inferences from

basic facts to ultimate facts.” Jackson, 443 U.S. at 319; see also Adames v. State, 353 S.W.3d

854, 860 (Tex. Crim. App. 2011). We defer to the jury’s determinations of credibility and may

not substitute our judgment for that of the jury. Jackson, 443 U.S. at 319; Thornton v. State, 425

S.W.3d 289, 303 (Tex. Crim. App. 2014). When there is conflicting evidence, we must presume

the factfinder resolved the conflict in favor of the verdict, and defer to that resolution. Jackson,

443 U.S.at 326; Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007). Evidence is

sufficient if “the inferences necessary to establish guilt are reasonable based upon the cumulative




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force of all the evidence when considered in the light most favorable to the verdict.” Wise v.

State, 364 S.W.3d 900, 903 (Tex. Crim. App. 2012).

       A person commits assault if he intentionally, knowingly, or recklessly causes bodily

injury to another person. TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2015). The offense

is generally a Class A misdemeanor but is elevated to a second degree felony if (1) the offense is

committed against a person with whom appellant has or has had a dating relationship, or a family

or household member; (2) appellant had a prior conviction for assault involving family violence,

and (3) “the offense is committed by intentionally, knowingly, or recklessly impeding the normal

breathing or circulation of the blood of the person by applying pressure to the person’s throat or

neck or by blocking the person’s nose or mouth.” Id. § 22.01(b-1).

       Appellant asserts that he did not impede Louise’s breathing by choking her; instead, he

suggests she became short of breath because she was upset and about to cry. At trial, Louise

testified that appellant put her in a “chokehold” by wrapping his arm around her neck and

choking her. She testified she could not breathe, and could not even breathe enough to scream

for help. She estimated that appellant choked her for thirty to sixty seconds. Louise’s testimony

was corroborated by the testimony of her sister, Terrie Patton. Terrie testified that she saw

appellant’s arm around Louise’s neck and it looked like he was squeezing. She also testified that

Louise did not make a sound. The jury heard the recording of Louise’s 911 call. Louise told the

911 dispatcher that appellant hit her in the face and nose and choked her when she got out of the

car to get her baby. The jury also heard Officer Guyger’s testimony that she did not see any

marks on Louise’s neck. Guyer told the jury that in her experience, you do not always see marks

on a person who says they have been strangled. Guyer explained that strangling someone with

your hands will leave marks from your nails and fingers, but strangling someone with your

forearm will not leave marks because it is the muscle of the forearm putting pressure on the neck.

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       The jury is the sole judge of the witnesses’ credibility and the weight to be given to their

testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). When reviewing the

evidence in the light most favorable to the verdict, we are required to defer to the jury’s

credibility and weight determinations. Clayton, 235 S.W.3d at 778. We conclude the evidence

is sufficient to permit rational jurors to find that appellant impeded Louise’s normal breathing.

We overrule appellant’s first issue.

B. Evidence of Prior Conviction at Guilt/Innocence

       In his second issue, appellant contends the trial court erred by allowing the State to

present appellant’s prior conviction for assault, family violence at the guilt/innocence phase of

the trial. Appellant argues the prior conviction was a punishment enhancement, not an element

of the indicted offense. We review the trial court’s decision to admit or exclude evidence under

an abuse of discretion standard. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010).

The trial court does not abuse its discretion unless its determination lies outside the zone of

reasonable disagreement. Layton v. State, 280 S.W.3d 235, 240 (Tex. Crim. App. 2009) (citing

Montgomery v. State, 810 S.W.2d 372, 380 (Tex. Crim. App. 1990)).

       In determining whether a prior conviction is an element of the offense or serves as an

enhancement, we begin with the text of the statute. See Calton v. State, 176 S.W.3d 231, 234

(Tex. Crim. App. 2005).        The plain language of section 22.01(b-1) of the penal code

demonstrates that the second-degree felony offense of family violence assault by impeding

breath or circulation with a previous family violence conviction is committed when appellant (1)

intentionally, knowingly, or recklessly causes bodily injury; (2) to another; (3) with whom

appellant has or has had a dating relationship, or with whom appellant is a family or household

member; (4) appellant had a prior conviction for assault involving family violence; and (5)

appellant impeded the normal breathing or circulation of the person. See TEX. PENAL CODE

                                               –6–
ANN. § 22.01(b-1). The statute is not ambiguous. It defines the offense as occurring when the

defendant has previously been convicted of assault involving family violence. Clearly, the prior

conviction is an essential element of the second-degree felony offense. See Wingfield v. State,

481 S.W.3d 376, 379 (Tex. App.—Amarillo 2015, pet. ref’d); Reyes v. State, 314 S.W.3d 74, 81

(Tex. App.—San Antonio 2010, no pet.).

         When the prior conviction is an element of the offense, it must be proven at the

guilt/innocence phase of the trial. See Calton, 176 S.W.3d at 234; see also State v. Karamvellil,

No. 05-08-00549-CR, 2008 WL 5147116, at *3 (Tex. App.—Dallas Dec. 9, 2008, pet. ref’d)

(mem. op.) (not designated for publication). Thus, the State had to plead and prove at the

guilt/innocence phase of trial both that the current assault involved family violence and that

appellant had a previous conviction for an assault involving family violence. See Wingfield, 481

S.W.3d at 379; Reyes, 314 S.W.3d at 81; Guzman v. State, No. 05-15-00865-CR, 2016 WL

462894, at *1 (Tex. App.—Dallas Feb. 5, 2016, no pet.) (mem. op.) (not designated for

publication). Accordingly, we conclude the trial court did not err by allowing the State to

present appellant’s prior conviction for assault, family violence at the guilt/innocence phase of

the trial. We overrule appellant’s second issue.

C. Jury Charge Error

         In his third and fourth issues, appellant complains about the jury charge given at the

guilt/innocence phase. In his third issue, appellant contends the trial court erred by submitting a

jury charge that failed to limit the definition of the culpable mental states to the result of

appellant’s conduct. In his fourth issue, appellant contends the trial court erred by including a

definition of reasonable doubt. Appellant failed to make either of these objections in the trial

court.




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       Appellate review of purported error in a jury charge involves a two-step process. Kirsch

v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). We first determine if the jury charge was

erroneous. Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015); Price v. State, 457

S.W.3d 437, 440 (Tex. Crim. App. 2015). If error exists, we then determine whether the error

caused sufficient harm to warrant reversal. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim.

App. 2005).     When, as in this case, the error was not objected to, the error must be

“fundamental” and requires reversal “only if it was so egregious and created such harm that the

defendant ‘has not had a fair and impartial trial.’” See Barrios v. State, 283 S.W.3d 348, 350

(Tex. Crim. App. 2009) (quoting Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)

(op. on reh’g)). Egregious harm exists when the record shows that a defendant has suffered

actual, rather than merely theoretical, harm from jury-charge error. Nava v. State, 415 S.W.3d

289, 298 (Tex. Crim. App. 2013). Egregious error consists of error affecting the very basis of

the case, depriving the defendant of a valuable right, or vitally affecting a defensive theory. Id.

(citing Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011)). We assess harm in light of

the entire jury charge, the state of the evidence, including contested issues, the arguments of

counsel, and any other relevant information revealed by the record as a whole. Id.

       1. Mental State Definitions

       Appellant asserts the trial court erred by failing to limit the definitions of “intentionally,”

“knowingly,” and “recklessly” to the applicable conduct element. There are three “conduct

elements” that can be involved in an offense: (1) the nature of the conduct, (2) the result of the

conduct, and (3) the circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03

(West 2011); see also Price, 457 S.W.3d at 441. “In a jury charge, the language in regard to the

culpable mental state must be tailored to the conduct elements of the offense.” Price, 457

S.W.3d at 441. A trial court errs when it does not limit the language in regard to the applicable

                                                –8–
culpable mental states to the appropriate conduct element. See id.; see also Patrick v. State, 906

S.W.2d 481, 492 (Tex. Crim. App. 1995).

       Appellant argues, and the State agrees, that family violence assault by impeding normal

breathing is a “result of the conduct” offense. Therefore, the jury charge should have contained

only that portion of the statutory definition corresponding to the result of conduct element

required for the offense. See Ash v. State, 930 S.W.2d 192, 194 (Tex. App.—Dallas 1996, no

writ). Instead, the portion of the jury charge that contained the mental state definitions tracked

the statutory definitions of the culpable mental states, giving full definitions for “intentionally,”

“knowingly,” and “recklessly” without limiting the definitions to the result of conduct. See TEX.

PENAL CODE ANN. § 6.03. Appellant argues he was egregiously harmed by the complained-

about instruction because it improperly focused the jury on the nature of the conduct and not on

the result of the conduct. The State responds that if there was error in the charge, any error was

harmless. We agree with the State.

       Even assuming it was error for the charge to include the full statutory definitions of

“intentionally,” “knowingly,” and “recklessly,” we conclude the appellant was not egregiously

harmed. We first consider the entire jury charge. See Almanza, 686 S.W.2d at 171. Regardless

of the way in which the offense of family violence assault by impeding normal breathing is

characterized, when the application paragraph of the charge correctly instructs the jury on the

law applicable to the case, any error in the abstract instruction is not egregious. See Medina v.

State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); Pierce v. State, No. 05-12-01211-CR, 2013

WL 6196275, at *7 (Tex. App.—Dallas Nov. 25, 2013, no pet.) (mem. op.) (not designated for

publication).

       The application portion of the charge provided:

       Now, if you find from the evidence beyond a reasonable doubt that on or about
       August 19th, 2014, in Dallas County, Texas, the defendant, JOHNNY LEE
                                                –9–
       CHAPIN, did then and there intentionally, knowingly or recklessly cause bodily
       injury to another, namely LOUISE CHAPIN, hereinafter called complainant, by
       squeezing complainant’s neck with an arm and the said defendant has or has had a
       dating relationship with the said complainant or the said defendant was a member
       of the complainant’s family or household, and the defendant committed the said
       offense by intentionally, knowingly, or recklessly impeding the complainant’s
       normal breathing or circulation of blood by applying pressure to the
       complainant’s throat or neck or by blocking the complainant’s nose or mouth, and
       the defendant has been previously convicted of an offense under Texas Penal
       Code Chapter 19 and 22, Sections 20.03, 20.04, 21.11 and 25.11 committed
       against a member of the defendant’s family or household or a person with whom
       the defendant has or has had a dating relationship: Assault Bodily Injury Family
       Violence on or about the 15th day of August 2011, in the 422nd District Court of
       Kaufman County, Texas in Cause number 29396-422, you shall find the
       defendant guilty of Family Violence Assault by Impeding Breath or Circulation
       with a Previous Family Violence Conviction as charged in the indictment.

In the application paragraph, the mental states “intentionally,” “knowingly,” and “recklessly”

directly modify the result of the conduct (causing bodily injury to another). See Ash, 930 S.W.2d

at 195. Contrary to appellant’s assertion, the application paragraph also specifically describes the

manner and means of committing the offense (causing bodily injury to Louise by squeezing her

neck with his arm). See id. (“The application portion of the charge, which specifically describes

the manner and means of committing the offense, i.e., committing bodily injury by ‘striking the

complainant’s head repeatedly against the pavement,’ would tend to limit the culpable mental

states to the result of appellant’s conduct.”). We conclude the application paragraph sufficiently

limited the culpable mental states of “intentionally,” “knowingly,” and “recklessly” to their

relevant conduct element, result of conduct.

       When we review the second Almanza factor, the state of the evidence, we find testimony

that appellant intentionally, knowingly, or recklessly caused the result of his conduct. Appellant

put his arm around Louise’s neck and squeezed, impeding her normal breathing. The third

Almanza factor is the arguments of counsel. Almanza, 686 S.W.2d at 171. Appellant’s trial

counsel generally argued that there was reasonable doubt that the events alleged in the

indictment had even occurred. Appellant’s arguments did not pertain to the culpable mental
                                               –10–
states or rely on their definitions. Finally, Almanza instructs that we should consider any other

relevant information in the record. Id. We have reviewed the record and find no additional

relevant information affecting our decision.

       Based on the foregoing, we conclude that the erroneous mental state instruction did not

cause appellant to suffer egregious harm. We therefore resolve appellant’s third issue against

him.

       2. Reasonable Doubt Definition

       In his fourth issue, appellant argues the trial court “committed structural error” by giving

the jury a definition of reasonable doubt in the charge on guilt/innocence. Appellant did not

object to this jury instruction, which stated: “it is not required that the prosecution prove guilt

beyond all possible doubt; it is only required that the prosecution’s proof exclude all reasonable

doubt concerning the defendant’s guilt.”

       We rejected this argument in O’Canas v. State, 140 S.W.3d 695, 700–02 (Tex. App.—

Dallas 2003, pet. ref’d). In that case, we held that the instruction “simply states the legally

correct proposition that the prosecution’s burden is to establish proof beyond a reasonable doubt

and not all possible doubt.” Id. at 702. Appellant acknowledges our prior decision but disagrees

with our analysis in O’Canas. He argues the quoted language is a definition, and Paulson v.

State, 28 S.W.3d 570, 572 (Tex. Crim. App. 2000), prohibits defining reasonable doubt.

       Since 2003, we have rejected appellant’s argument in cases involving this exact

instruction.   See Bates v. State, 164 S.W.3d 928, 931 (Tex. App.—Dallas 2005, no pet.);

Washington v. State, No. 05-14-00604-CR, 2015 WL 4178345, at *7 (Tex. App.— Dallas July

10, 2015, no pet.) (not designated for publication). Further, the court of criminal appeals has

held that a trial court does not abuse its discretion in giving the complained-of instruction. See

Mays v. State, 318 S.W.3d 368, 389 (Tex. Crim. App. 2010); Woods v. State, 152 S.W.3d 105,

                                               –11–
115 (Tex. Crim. App. 2004). We decline appellant’s urging to re-visit our O’Canas opinion.

The instruction did not define reasonable doubt, and the trial court did not err by including it in

the jury charge. We overrule appellant’s fourth issue.

D. Trial Court Jurisdiction

       In his fifth issue, appellant contends the trial court lacked jurisdiction because the case

was originally presented for indictment in a different trial court, and there were no written orders

transferring the case to the court that tried the case and rendered judgment. If a defendant fails to

file a plea to the jurisdiction, he waives any right to complain that a transfer order does not

appear in the record. Lemasurier v. State, 91 S.W.3d 897, 899–900 (Tex. App.—Fort Worth

2002, pet. ref’d). There was no such plea here.

       Moreover, even if appellant’s complaint had been preserved for our review, we have

repeatedly addressed and rejected this argument. See Bourque v. State, 156 S.W.3d 675, 678

(Tex. App.—Dallas 2005, pet. ref’d); Halton v. State, No. 05-14-00640-CR, 2015 WL 3991827,

at *13 (Tex. App.—Dallas July 1, 2015, no pet.) (mem. op.) (not designated for publication).

We conclude this issue is without merit and overrule appellant’s fifth issue.

                                       III. CONCLUSION

       Having overruled all of appellant’s issues, we affirm the judgment of the trial court.




                                                    /Michael J. O'Neill/
                                                    MICHAEL J. O’NEILL
                                                    JUSTICE, ASSIGNED

Do Not Publish
TEX. R. APP. P. 47

151009F.U05




                                               –12–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

JOHNNY LEE CHAPIN, Appellant                       On Appeal from the 291st Judicial District
                                                   Court, Dallas County, Texas
No. 05-15-01009-CR        V.                       Trial Court Cause No. F-1476200-U.
                                                   Opinion delivered by Justice O'Neill.
THE STATE OF TEXAS, Appellee                       Justices Bridges and Evans participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.


Judgment entered this 19th day of August, 2016.




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