                                   In The
                              Court of Appeals
                     Seventh District of Texas at Amarillo

                                   No. 07-15-00144-CR
                                   No. 07-15-00145-CR


                           CECIL HOWELL, JR., APPELLANT

                                            V.

                          THE STATE OF TEXAS, APPELLEE

                          On Appeal from the 264th District Court
                                     Bell County, Texas
            Trial Court Nos. 72374, 72375; Honorable Martha J. Trudo, Presiding

                                  May 29, 2015

                            MEMORANDUM OPINION
                  Before QUINN, C.J., and CAMPBELL and PIRTLE, JJ.

      Appellant Cecil Howell, Jr. was convicted of two separate offenses of aggravated

assault with a deadly weapon. The victims were his girlfriend Ladonya and her ten-

year-old son. According to the record, appellant hit each with a hammer during an

argument.   Appellant was sentenced to thirty years in prison on each offense.       In

challenging those convictions, he contends 1) the jury charges contained an erroneous

instruction on the culpable mental state, and 2) no meaningful limiting instruction was

given to the jury with respect to a prior conviction. We affirm the judgments.
       Issue 1 – Jury Instruction on Culpable Mental State

       In his first issue, appellant claims that aggravated assault with a deadly weapon

is both a result of conduct and nature of conduct offense and that the jury charge should

have included an instruction to that effect. That is, while assault causing bodily injury is

a result of conduct offense, the aggravating factor (i.e., the use or exhibition of a deadly

weapon) implicates the nature of the accused’s conduct. Thus, the charge allegedly

should have somehow referred to both when defining the requisite mental state. We

overrule the issue.

       As stated in Price v. State, No. PD-0383-14, 2015 Tex. Crim. App. LEXIS 389

(Tex. Crim. App. April 15, 2015), “. . . the gravamen of the offense [is used] to decide

which conduct elements should be included in the mental-state language.” Id. at *7. “If

the gravamen of an offense is the result of conduct, the jury charge on culpable mental

state should be tailored to the result of conduct and likewise for nature-of-conduct

offenses.” Id. at *7-8. The gravamen of an assault by causing bodily injury is the result

of causing bodily injury. Landrian v. State, 268 S.W.3d 532, 533 (Tex. Crim. App.

2008). That is, “. . . the actus reus for ‘bodily injury’ aggravated assault is ‘causing

bodily injury.’" Id. at 537. And, “[t]his actus reus must be accompanied by a culpable

mental state.” Id.; see also Shelby v. State, 448 S.W.3d 431, 439 (Tex. Crim. App.

2014) (stating that the offense of aggravated assault on a public servant is a result

oriented offense with the gravamen of causing bodily injury); Sixtos v. State, No. 05-13-

00502-CR, 2014 Tex. App. LEXIS 9518, at *19 (Tex. App.—Dallas December 17, 2014,

pet. ref’d) (not designated for publication) (stating that aggravated assault by causing

bodily injury by use of a deadly weapon is a result-oriented offense and the culpable



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mental state definition in the jury charge should have solely referenced the result of

appellant’s conduct); accord Johnson v. State, 271 S.W.3d 756, 761 (Tex. App.—Waco

2008, pet. ref’d) (stating that when the assault involves causing bodily injury, the

primary focus remains on the result of the defendant’s conduct, even if he uses or

exhibits a deadly weapon). Here, the assault involved the infliction of bodily injury; so,

its gravamen involved the causing of bodily injury. Thus, the instruction pertinent to the

mental state only need have focused on “causing bodily injury,” as it did here. Thus, it

was not erroneous. Sixtos v. State, supra.1

        Issue 2 – Jury Instruction on Extraneous Offenses

        Next, appellant testified at trial and was cross-examined as to a prior offense of

possession of a controlled substance. The testimony was admitted without a request

for a limiting instruction. Appellant now argues that the trial court should have included,

sua sponte, an instruction in the jury charge directing the jury that the aforementioned

prior offense could only be considered for purposes of attacking his credibility. We

overrule the issue.

        No request for a limiting instruction was made at the time that the evidence of the

prior conviction was offered.         Therefore, the jury was entitled to consider it for all

purposes.      Hammock v. State, 46 S.W.3d 889, 895 (Tex. Crim. App. 2001);

Brewer v. State, No. 03-10-0075-CR, 2014 Tex. App. LEXIS 1992, at *48-49 (Tex.

App.—Austin February 21, 2014, no pet.) (not designated for publication). If the limiting


1
    Though appellant cites Johnson v. State, 271 S.W.3d 756 (Tex. App.—Waco 2008, pet. ref’d) as
support for his position, the issue before us was not the issue before the Johnson panel. Instead, it was
asked to determine whether the crime of assault (causing bodily injury) had been completed before the
deadly weapon had been used or exhibited. More importantly, it recognized that the gravamen of the
crime remained bodily injury, even though the charge included reference to the use of a deadly weapon.
Id. at 761. Nowhere did that court suggest that the charge must include a mental state applicable to both
the gravamen of the offense and the aggravating factor, i.e. use or exhibition of a deadly weapon.

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instruction is not requested at the time the evidence is admitted, the trial court has no

obligation to limit its use in the jury charge. Delgado v. State, 235 S.W.3d 244, 251

(Tex. Crim. App. 2007). Thus, the trial court did not err in omitting an instruction of the

ilk appellant now seeks. The issue is overruled

       Having overruled each issue, we affirm the judgments.



                                                        Brian Quinn
                                                        Chief Justice

Do not publish.




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