                       COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                            NO. 02-14-00406-CR


VINCENT EUGENE VALENCIA                                          APPELLANT

                                     V.

THE STATE OF TEXAS                                                    STATE


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     FROM CRIMINAL DISTRICT COURT NO. 2 OF TARRANT COUNTY
                   TRIAL COURT NO. 1343710D

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                       MEMORANDUM OPINION1

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     In one point, Appellant Vincent Eugene Valencia appeals his conviction of

causing injury to a child. See Tex. Penal Code Ann. § 22.04(a) (West Supp.

2015). We affirm.




     1
      See Tex. R. App. P. 47.4.
                              Factual Background

      Valencia struck his fourteen-year-old daughter Ava2 when she intervened

in an altercation between him and his roommate, Kacey. According to Ava, the

two adults, who were intoxicated at the time, were engaged in a mutual argument

over a missing lighter.    Valencia’s eleven-year-old daughter Becky was also

present at the time.

      According to Ava, as she tried to stop Valencia from dragging Kacey to the

apartment balcony, he resisted, and in the process he elbowed her and punched

her in the chest. Although Valencia’s act appeared to Ava to be intentional—he

made eye contact with her prior to delivering the elbow and the punch—Ava also

testified that Valencia appeared to be “in shock” and “surprised” immediately

after he struck her. Ava testified that he looked at her “like, Whoa, like he didn’t

mean it,” and it appeared to her as though he regretted it afterwards.

      Shortly thereafter, Ava and Kacey retreated to the bathroom, shutting, but

not locking, the door behind them. Valencia followed them, and as he attempted

to open the door, the door knob struck Ava in the ribs as it pushed her against

the wall. Ava characterized her getting struck with the door knob as more of an

accident than an intentional act on Valencia’s part.

      Although the police officer who responded to the scene testified that Ava

was complaining of pain on the right side of her abdomen that same evening,

      2
      In accordance with rule 9.8, we refer to children and family members by
pseudonyms. Tex. R. App. P. 9.8 cmt.


                                         2
Ava testified that she did not feel any that night, but she awoke the next morning

with pain and a golf ball-sized bruise on her ribs. When her mother observed

that Ava was experiencing difficulty in breathing and walking, she took Ava to the

hospital to be examined.3 Ava’s medical records documented her “pain score” as

an eight, on a scale of one-to-ten. The bruise remained visible for four or five

days.

                                     Discussion

        In his sole issue, Valencia complains of jury charge error,4 specifically, that

the trial court erred in failing to limit the definition of intent in the abstract charge

instructions to result-of-conduct.

        “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id. If error did

occur, then the degree of harm required for reversal depends on whether the

error was preserved. Id.

        Unpreserved charge error—which occurred in this case when Valencia

failed to object to the defective instruction at trial—warrants reversal only when


        3
       After the police responded to the altercation, Ava and her sister stayed at
the apartment with Kacey until their mother picked them up at nine o’clock in the
morning.
        4
        Valencia did not object to the jury charge at trial.


                                           3
the error resulted in egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex.

Crim. App. 2013); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) (op. on reh’g); see Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006).

The appropriate inquiry for egregious harm is fact-specific and, therefore, must

be performed on a case-by-case basis. Gelinas v. State, 398 S.W.3d 703, 710

(Tex. Crim. App. 2013); Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App.

2011).

      In making an egregious-harm determination, “the actual degree of harm

must be assayed in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument of

counsel and any other relevant information revealed by the record of the trial as a

whole.” Almanza, 686 S.W.2d at 171; see generally Gelinas, 398 S.W.3d at

708–10 (applying Almanza). Errors that result in egregious harm are those “that

affect the very basis of the case, deprive the defendant of a valuable right, vitally

affect the defensive theory, or make a case for conviction clearly and significantly

more persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at

172). The purpose of this review is to illuminate the actual, not just theoretical,

harm to the accused. Almanza, 686 S.W.2d at 174.

      Section 6.03 of the Texas Penal Code sets out two possible conduct

elements for criminal acts: the nature of the conduct and the result of the

conduct. In applying those conduct elements to jury charge instructions, the

Texas Court of Criminal Appeals has explained,


                                         4
      When “specific acts are criminalized because of their very nature, a
      culpable mental state must apply to committing the act itself.”
      McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989).
      “On the other hand, unspecified conduct that is criminalized because
      of its result requires culpability as to that result.” Id. A trial court errs
      when it fails to limit the language [in the charge] in regard to the
      applicable culpable mental states to the appropriate conduct
      element. Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App.
      1994), cert denied, 133 S.Ct. 536 (2012).

Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015).

      Injury to a child is a result-of-conduct offense, meaning that the actor’s

conduct must be done with the required culpability to effect the result of bodily

injury. Johnson v. State, 364 S.W.3d 292, 297 n.37 (Tex. Crim. App. 2012)

(citing Cook v. State, 884 S.W.2d 485, 489 (Tex. Crim. App. 1994)); Jefferson v.

State, 189 S.W.3d 305, 312 (Tex. Crim. App. 2006), cert. denied, 549 U.S. 957

(2006). Thus, the State had to prove Valencia intentionally or knowingly caused

bodily injury to Ava, a child younger than fifteen years of age, by striking her with

his hand. See Tex. Penal Code Ann. § 22.04(a). And, when charging the jury as

to the mental state element, the trial court was required to limit the conduct

element to result-of-the-conduct only. See Price, 457 S.W.3d at 441.

      In its abstract charge instruction, the trial court instructed the jury as

follows: “A person acts intentionally, or with intent, with respect to the result of

his conduct when it is his conscious objective or desire to engage in the conduct

or cause the result.” [Emphasis added.] Because the court included nature-of-

the-conduct language and did not limit the instruction to the result-of-the-conduct

element, the trial court incorrectly charged the jury in this portion of the charge.


                                           5
      However, it is not the abstract portion of the charge, but the application

paragraph of the charge, that authorizes a conviction. Crenshaw v. State, 378

S.W.3d 460, 466 (Tex. Crim. App. 2012) (citing Hutch v. State, 922 S.W.2d 166,

172 (Tex. Crim. App. 1996); Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim.

App. 1995)). And, here, Valencia concedes that the trial court committed no error

with regard to the application paragraph.5 Therefore, the trial court’s error in the

abstract portion of the charge will result in reversible error only if it constitutes “an

incorrect or misleading statement of a law that the jury must understand in order

to implement the commands of the application paragraph.” See Crenshaw, 378

S.W.3d at 466 (citing Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App.

1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim.

App. 1997)).

      “Where the application paragraph correctly instructs the jury, an error in

the abstract instruction is not egregious.” Medina v. State, 7 S.W.3d 633, 640

(Tex. Crim. App. 1999) (citing Plata, 926 S.W.2d at 302–03 (“The inclusion of a


      5
       The application paragraph charged the jury:

                      Now, if you find from the evidence beyond a
               reasonable doubt that the Defendant, Vincent Eugene
               Valencia, in the County of Tarrant and State of Texas,
               on or about the 29th day of September, 2013, did
               intentionally or knowingly cause bodily injury to [Ava], a
               child younger than 15 years of age by striking her with
               his hand, then you will find the Defendant guilty of injury
               of a child as charged in the indictment.




                                           6
merely superfluous abstraction . . . never produces reversible error in the court’s

charge because it has no effect on the jury’s ability fairly and accurately to

implement the commands of the application paragraph or paragraphs.”)), cert.

denied, 529 U.S. 1102 (2000).        The appellant in Medina was charged with

murder, a result-of-conduct crime, but the trial court erroneously defined

“knowingly” only with reference to the nature of the conduct.6 Id. at 639. Any

resulting harm was not egregious, however, because the application paragraph

“repeatedly and consistently instructed the jury that they must believe beyond a

reasonable doubt that appellant ‘intentionally or knowingly caused the death’

before they could find him guilty.” Id. at 640.

      Likewise, in Patrick v. State, 906 S.W.2d 481, 491 (Tex. Crim. App. 1995),

cert. denied, 517 U.S. 1106 (1996), the appellant was charged with capital

murder, which is a result-of-conduct offense which also includes nature of

circumstances and/or nature of conduct elements depending upon the underlying

crime elevating it to capital murder. In Patrick, the trial court erred in not limiting

the nature of conduct and/or nature of circumstances language to proving the

conduct element of the underlying offense of burglary. Id. at 492. However, the

court of criminal appeals held that this did not result in egregious harm “because

the facts, as applied to the law in the application paragraph, pointed the jury to

      6
       The definition read as follows: “A person acts knowingly, or with
knowledge, with respect to the nature of his conduct or to circumstances
surrounding his conduct when he is aware of the nature of his conduct or that the
circumstances exist.” Medina, 7 S.W.3d at 639.


                                          7
the appropriate portion of the definitions.” Id. at 493 (citing Hughes v. State, 897

S.W.2d 285, 296 (Tex. Crim. App. 1994), cert. denied, 514 U.S. 1112 (1995)).

      Valencia argues that the correctly-worded application paragraph does not

prevent a finding of egregious harm, relying upon the unpublished opinion of

Dougherty v. State, No. PD-1411-05, 2006 WL 475802 (Tex. Crim. App. 2006)

(per curiam) (not designated for publication). Dougherty held that an appellate

court improperly limited its harm analysis when it determined that the abstract

instruction did not cause egregious harm because the application paragraph was

correct without consideration of the remaining factors discussed in Almanza. Id.

at *1. As an unpublished opinion, Dougherty has no precedential value, but out

of an abundance of caution we will address Valencia’s arguments regarding the

Almanza factors.7 See Tex. R. App. P. 47.7.

      7
        At least six of our sister courts have taken a similar approach in analyzing
all four Almanza factors out of an abundance of caution in light of the Dougherty
decision. See Cosby v. State, No. 05-13-01072-CR, 2015 WL 2438766, at *4–5
(Tex. App.—Dallas May 21, 2015, no pet.) (mem. op., not designated for
publication); Johnson v. State, No. 01-13-00104-CR, 2014 WL 1004401, at *5–6
(Tex. App.—Houston [1st Dist.] Mar. 13, 2014, pet. ref’d) (mem. op., not
designated for publication); In re I.L., 389 S.W.3d 445, 454 n.6 (Tex. App.—El
Paso 2012, no pet.); Matus v. State, No. 10-08-00149-CR, 2011 WL 1166383,
*7–8 (Tex. App.—Waco Mar. 30, 2011, pet. ref’d) (mem. op., not designated for
publication); Chaney v. State, 314 S.W.3d 561 (Tex. App.—Amarillo 2010, pet.
ref’d); Silva v. State, No. 14-06-00207-CR, 2007 WL 1745603, at *6 n.2 (Tex.
App.—Houston [14th Dist.] June 19, 2007, no pet.) (mem. op., not designated for
publication). But the court of criminal appeals has also refused review in at least
one case that did not analyze the remaining Almanza factors after holding that
any jury charge error was harmless in light of the correctly-worded application
paragraph. Newman v. State, No. 04-11-00747-CR, 2013 WL 3871053, at *4
(Tex. App.—San Antonio July 24, 2013, pet. ref’d) (mem. op., not designated for
publication).


                                         8
      Almanza holds that “the actual degree of harm must be assayed in light of

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

and weight of probative evidence, the argument of counsel and any other

relevant information revealed by the record of the trial as a whole.” 686 S.W.2d

at 171.   With regard to the first factor, we have already discussed that the

application paragraph of the jury charge correctly defines and ties “intentionally”

to the result of Valencia’s conduct.

      As to the second factor, the state of the evidence, the jury heard testimony

that Valencia looked at Ava prior to elbowing her and punching her in the chest.

Ava also testified that she had trouble breathing and walking the next day and

went to the hospital for treatment. And while Ava did testify that the punch did

not hurt, that he only punched her once, and that he appeared “shocked” and

“surprised” after he did it, Ava also testified that, from her vantage point, the hit

was intentional. Additionally, Ava thought that the punch did not hurt initially

because she was in shock at the time. And a responding police officer testified

that Ava complained of pain on her right side that night.

      Valencia argues that the State’s questioning of Ava of whether she felt

Valencia intentionally hit her “contributed to the danger that the jury

misunderstood the intent inquiry.” But specific intent is hardly ever provable by

direct evidence, and may be inferred from acts, words, or conduct of the

accused. Samuel v. State, 477 S.W.2d 611, 614 (Tex. Crim. App. 1972) (citing

Kincaid v. State, 198 S.W.2d 899, 900 (1946)). It may also be inferred from the


                                         9
extent of the injuries and the relative size and strength of the parties. Patrick,

906 S.W.2d at 487. Whether Valencia looked at or otherwise acknowledged Ava

when he struck her in the ribs is appropriate evidence of Valencia’s intent, and

allows the jury to infer that he intended to injure Ava. See, e.g., id. at 487;

Villarreal v. State, No. 13-10-00396-CR, 2012 WL 1142885, *8 (Tex. App.—

Corpus Christi April 5, 2012, no pet.) (mem. op., not designated for publication)

(“It strains common sense to believe a jury would have found appellant intended

not to feed or care for the child but failed to find she thereby intended to, or knew

that it would, cause him serious bodily injury.”).

      The third Almanza factor to be considered is the argument of counsel.

Almanza, 686 S.W.2d at 171. Valencia argues that the State contributed to the

harm by stating in its closing, “When you punch a child in the ribs, it’s an assault.

Okay? Common sense. When you punch a child with a closed fist, looking at

her intentionally to try to prevent her from interfering with your assault on your

roommate, that’s an assault. That’s an injury to a child.” Valencia’s argument,

however, minimizes his own counsel’s closing argument, which clarified that the

jury must find that he intended to cause bodily injury:

              On the one hand, you know, oh, intentional, maybe, but he
      looked surprised. When he turned around, he looked surprised. Is
      that intentional? Because he stopped. He stopped immediately
      when he realized that that was her. This is a chaotic situation. I’m
      not up here saying that Vincent Valencia wasn’t acting like a total
      ass that night. I’m not up here telling you that. I’m up here telling
      you that he’s not guilty of intentionally and knowingly causing bodily
      injury.



                                          10
              ....

             And we’re going to ask you for a finding of not guilty because
      we believe that the Prosecutor did not prove beyond all reasonable
      doubt that this—that [Ava] was caused bodily injury knowingly and
      intentionally by her father.

              ....

             They have to prove not just that he caused bodily injury to her,
      but that he did it intentionally and knowingly with his hand okay, not
      his elbow, not a door knob.

Thus, defense counsel’s argument directed the jury to the correct standard of

“intentionally” to be applied by the jury, preventing egregious harm.            See

Villarreal, 2012 WL 1142885 at *8 (holding that defense counsel’s argument

“steered the jury to the correct mental state for a result-oriented offense”).

      Finally, Almanza directs us to look to “any other relevant information

revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171.

Valencia points us to notes sent by the jury during deliberations. The notes read

as follows:

      Jury Note No. 1:

             Transcript of [Ava]’s Testimony – We need details from [Ava]’s
      testimony regarding her wording of her dad’s look and the punch.
      She stated dad looked and then punched, [and] mentioned his
      intent. We dispute her actual words used in her description of the
      incident.

      Jury Note No. 2:

              (1) Medical Records

              (2) Police Reports



                                         11
             (3) Pictures of [Ava]

      Jury Note No. 3:

             Testimony from [Ava] . . .
             At what point did he look at her prior or after he hit her[?]
             Did he elbow her th[e]n punch her at same time or did he
             elbow her th[e]n look at her th[e]n punch her[?]

      Jury Note No. 4:

             Clarification on 4 & 5 of Page #2[8]

      Unnumbered Jury Note:

                   We need clarification on the # of times the father “look”
             up prior to or after the hit.

      Unnumbered Jury Note:

                   We have a dispute over testimony. We need details
             regarding the wording used by Ava. She stated dad looked
             and then punched her. She said he did it intentionally. The
             dispute is her wording of the incident.

The jury also sent three notes that they could not reach a verdict.

      Valencia argues that these jury notes “provide empirical evidence” that the

erroneous definition caused the jury to “struggle to agree on [Valencia]’s intent.”

While jury notes may provide a glimpse into the confidential discussions and


      8
        There is no additional guidance in the record as to what this note is
referring. While paragraph 4 on page 2 of the jury charge contains the abstract
definitions of “intentionally” and “knowingly,” paragraph 5 instructs the jury on the
presumption of innocence afforded to the defendant and the prosecution’s duty to
prove guilt beyond all possible doubt. Without any further context in the record,
we cannot speculate as to the meaning of this note. See, e.g., Alonzo v. State,
328 S.W.3d 19, 27 (Tex. App.—Corpus Christi 2010), rev’d on other grounds,
353 S.W.3d 778 (Tex. Crim. App. 2011).


                                         12
interplay which occurs among the jurors behind closed doors, we must exercise

caution in presuming that we can glean from these notes which matters weighed

heavily on individual jurors or the entire body during the deliberative process.

See Alonzo, 328 S.W.3d at 27 (stating, “we ‘cannot endeavor to surmise a jury’s

intent from the jury’s notes’”) (quoting McAndrew v. State, No. 12-03-00297-CR,

2005 WL 674195, at *2 (Tex. App.—Tyler Mar. 23, 2005, pet. ref’d) (mem. op.,

not designated for publication)), rev’d on other grounds, 353 S.W.3d 778 (Tex.

Crim. App. 2011); see also Thomas v. Oldham, 895 S.W.2d 352, 360 (Tex.

1995) (“The jury’s reasons for reaching a particular verdict are irrelevant, at least

in the absence of some overt act of misconduct.”). While these notes do indicate

that the jury sought clarification both as to the evidence and the law on matters

related to intent, we are not persuaded that the jury’s notes necessarily indicate

that they “struggled to agree on [Valencia]’s intent.” Nor do they signify that

egregious harm occurred as a result of the erroneous abstract instruction

contained in the jury charge.

      Because the application instruction correctly instructs the jury by limiting

the conduct element to result-of-conduct only, and applying the remaining

Almanza factors, we conclude that Valencia did not suffer egregious harm. See,

e.g., Medina, 7 S.W.3d at 640; Almanza, 686 S.W.2d at 171. We therefore

overrule Valencia’s sole issue.




                                         13
                                     Conclusion

         Having overruled Valencia’s sole issue, we affirm the judgment of the trial

court.



                                                    /s/ Bonnie Sudderth
                                                    BONNIE SUDDERTH
                                                    JUSTICE

PANEL: LIVINGSTON, C.J.; MEIER and SUDDERTH, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: December 3, 2015




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