REVERSE and REMAND; Opinion issued March 15, 2013.




                                                   In The
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                                           No, 05-10-0087k-CR


                                  RODERICK PARKER, Appellant

                                                      V.

                                 THE STATE OF TEXAS, Appellee


                        On Appeal from the 397th Judicial District Court
                                    Grayson County, Texas
                                Trial Court Cause No. 059391


                                   OPINION ON REMAND
                         Before Justices Bridges, Richter’, and Murphy
                                  Opinion By Justice Richter

       A jury convicted appellant of retaliation and the court sentenced him to eight years’

imprisonment and a $500 fine. In his original brief on appeal, appellant raised four issues

asserting the trial court erred in instructing the jury. On original submission, we overruled

all of appellant’s issues and affirmed the trial court’s judgment. We observed that although

appellant’s second issue asserted he suffered harm because the definition does not correctly

state the law, he characterized this assertion as material to the harm analysis rather than as

the charge error that caused the harm.


       Honorable Martin E. Richter, Retired Justice, sitting by assignment.
       On appellant’s petition for discretionary review, the Texas Court of Criminal Appeals

concluded we should have considered “appellant’s claim that the definition of the term

unlawful was jury charge error in generaL” Parker v. State, No, PD098 12, 2012 WL

1438901 at *1 (Tex. Crim, App. 2012) (per curiam) (not designated for publication). The

Court vacated our judgment and remanded the case to this court “to consider appellant’s

second issue on appeaL” Id. Following remand, we gave the parties the opportunity to file

supplemental briefs. See Robinson v. State, 790 S.W.2d 334, 335—36 (Tex. Crim, App.

1990). Neither party availed itself of the opportunity to provide further briefing. Having

considered appellant’s second issue as framed by the court of criminal appeals, for the

reasons that follow, we reverse the trial court’s judgment and remand for a new trial.

       We review allegations ofjury charge error under the standard enunciated inAlrnanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). An erroneous or incomplete jury

charge does not result in automatic reversal. Abdnor v. State, 871 S.W.2d 726, 731 (Tex.

Crim. App. 1994). If error occurred, reversal is required if the error is “calculated to injure

the rights of the defendant,” which means that the accused has suffered some harm from the

error. Almanza, 686 S.W.2d at 171. Thus, an error that has been properly preserved will

require reversal only if the error is not hannless. Id. The harm suffered must be more than

merely theoretical harm, Sanchez v. State, 376 S.W.3d 767,775 (Tex. Crim. App. 2012). We

evaluate the issue of harm “in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the arguments of counsel

and any other relevant information revealed by the record of the trial as a whole.” Almanza,




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686 S.W2d at 171.

          In his second issue, appellant argues he was harmed by the additional definition of

unlawful because it “violated his right to a unanimous jury,” “lowered the state’s burden of

proving each and every element of the offense beyond a reasonable doubt,” and was

“confusing, misleading, and.           .   .   an incorrect statement of Texas law,” The court of criminal

appeals has framed the issue as whether the definition was an incorrect statement of the law.

Our inquiry is limited accordingly.
                       2

         Appellant was charged with retaliation. See TEx. PENAL CODE ANN. § 36.06(a) (West

2011). The statute provides, in pertinent part, that a person commits an offense if he

intentionally or knowingly harms or threatens to harm another by an unlawful act in

retaliation for or on account of the service or status of another as a person who has reported

or who the actor knows intends to report the occurrence of a crime. See Id.; see also Moore

v. State, 143 S.W.3d 305, 319 (Tex. App.—Waco 2004, pet. ref’d).

         After providing the statutory definition of the charged offense, the court endeavored

to define the “unlawful act” element set forth in the statute.
                                                      3 In so doing, the court provided

the definition at issue which states:

                  Unlawful means criminal or tortuous [sic] or both and includes what
                  would be criminal or tortuous [sic] but for a defense not amounting to
                  justification or privilege. Under Texas law, it is an unlawful act to
                  threaten someone by electronic communication in a manner likely to

   2
      Moreover, appellant provides no argument or authority to support his contention that the instruction violated his
right to a unanimous jury. Therefore, it has been waived as inadequately briefed. TEX. R. App. P. 38.1.

   The trial judge noted that because the State and the defense made statements to the jury regarding the legality of
   3
sending threatening text messages, he believed it necessary to instruct the jury that such an act was unlawful.




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              alarm the person who received the threat to inflict bodily injury on that
              person..

Appellant does not complain about the first part of the definition, which was derived from

the definitions section of the penal code. See TEx, PENAL CODE ANN.                  § I .07 (48) (West
201 1). Rather, it is the second part of the definition, derived from the harassment statute, to

which appellant assigns error, See TEX. PENAL CODE ANN.         § 42.07 (West 2011).
       In criminal jury trials, the trial court must deliver ‘a written charge distinctly setting

forth the law applicable to the case. TEx. CoDE CRIM. PRoc. ANN. art. 36.14 (West 2007).

Because the charge instructs the jury on the law applicable to the case, it must contain an

accurate statement of the law and set out all essential elements of the offense. Dinkins v.

State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). In reviewing the jury charge for any

alleged error, an appellate court must examine the charge as a whole and not as a series of

isolated and unrelated statements. Id.

       The retaliation statute does not define an ‘un1awful act. See TEX. PENALCODE ANN.

§ 36.06(a) (West 2011). As a general rule, terms that are not legislatively defined are to be
understood as ordinary usage allows, and jurors may give them any meaning which is

acceptable in common parlance. Medfrrd v. State, 13 S.W.3d 769,771—72 (Tex. Crim, App.

2000). On the other hand, ‘terms which have a known and established legal meaning or

which have acquired a peculiar and appropriate meaning in the law        .   .   .   are considered as

having been used in their technical sense.” Kirsch v. State, 357 S.W.3d 645, 650 (Tex. Crim.

App. 2012). Terms which have a technical or legal meaning may require an explicit




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definition, Middleron v. State, 125 SW3d 450, 454 (Tex. Crim, App. 2003). In addition,

a trial court not only has broad discretion in submitting proper definitions and explanatory

phrases to the jury,   it   must define those legal phrases that a jury must use to resolve an issue

See Macias v. State, 959 S.W.2d 332, 336 (Tex. App.—Houston 14th Dist. 1997, pet. ref’d):

see also Nejnaoui v. State, 44 S.W.3d lii, 119 (Tex. App.—Houston 14th Dist, 2001, pet.

ref’d) (stating court must define legal phrases jury must use in resolving issues and provide

statutory definition if available). Here, the term un1awful” had particular legal significance,

and as the trial court recognized, required definition to facilitate the jury’s resolution of the

ultimate issue in the case.

       In crafting a definition, however, it is important to remember the function of the

definitions and instructions in a charge. The function of the abstract paragraphs is to provide

a glossary to help the jury understand the meaning of concepts and terms used in the

application paragraphs of the charge. See Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim,

App. 1996). The application paragraph in the instant case read:

       If you believe from the evidence beyond a reasonable doubt that [appellant]     did   .   .   .



       then and there intentionally or knowingly threaten to harm [the victim] by an
       unlawful act, to wit: by sending. threatening text messages in retaliation for and
                                                .   .



       account of the service or status of [the victim] who had reported the occurrence of
       a crime, to wit: Assault.

The trial court’s definition gave the statutory definition of the word unlawful. The added

language from the harassment statute, which is a specific offense to that charged, was not

necessary to further define an unlawful act, and was improperly included in the charge.




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Therefore, we conclude the court’s definition was erroneous.
                                                  4

        Having concluded that the definition was erroneous, we now consider whether

appellant suffered harm, and any other relevant intirmation revealed by the record of the

trial as a whole,” Aimanza, 686 S.W.2d at 171. Appellant objected to the complainedof

definition as follows:

                “...actually, my objection is under Texas law, That law refers
                to a completely different crime under the statute of harassment
                as a crime I did not voir dire on. It’s a crime that I presented no
                evidence on. I did not prepare to defend against that particular
                crime and I am not prepared to address it, of course, at this late
                date. And again, I believe it introduces into the charge an
                additional burden on me as the attorney that wasn’t available
                when this trial started,”

We deem this objection sufficient to preserve appellant’s complaint that the definition is an

incorrect statement of the law. Therefore, we consider whether appellant suffered some

harm,

        Generally, reversible error occurs in the giving of an abstract instruction only when

the instruction is an incorrect or misleading statement of the law that the jury must

understand in order to implement the commands of the application paragraph. Plata, 926

S.W.2d at 302. But this is precisely what occurred here. The record reflects that appellant

assaulted the victim, Megan Lawson, and she told him she was contacting the police. After

appellant left the scene, Lawson began receiving threatening text messages from appellant’s

telephone number. Lawson continued to receive such messages after she went to the police



        conclusion is limited to the facts of this case and the narrow issue remanded for our consideration.




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station. Whether appellant sent the messages and whether the messages were actually

conveying a threat was the crux of the State’s case and the appellant’s defense. The unlawful

act was the essence of the case. Having the language   from the     harassment statute in the jury

charge was confusing and could lead the jury to believe appellant was guilty of retaliation

if it believed appellant harassed the complainant. Therefore, under these circumstances, we

cannot conclude that the complaine&of definition did not cause appellant to suffer some

harm. Appellant’s issue is sustained,

       We reverse the trial court’s judgment and remand for further proceedings consistent

with this opinion.

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                                                  MMUIN RICHTER
                                                  JUSTICE


Do Not Publish
TEx. R. App. P. 47

1 00878F.U05




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                                       JUDGMENT
RODERICK PARKER. Appellant                         Appeal from the 397th Judicial District
                                                   Court of Grayson County, Texas. (Tr,Ct.No.
No. 051000878-CR             V.                    059391).
                                                   Opinion delivered by Justice Richter,
THE STATE OF TEXAS, Appellee                       Justices Bridges and Murphy participating.


        Based on the Court’s opinion of this date, the judgment of the trial court is REVERSED
and the cause REMANI)ED for further proceedings.



Judgment entered March 15, 20 I 3.


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                                                   MAWrTN RICHTER
                                                   JUSTICE
