                           COURT OF APPEALS
                            SECOND DISTRICT OF TEXAS
                                 FORT WORTH

                                NO. 02-15-00454-CR


THOMAS GEORGE CRAAYBEEK                                          APPELLANT

                                         V.

THE STATE OF TEXAS                                                     STATE


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             FROM THE 90TH DISTRICT COURT OF YOUNG COUNTY
                         TRIAL COURT NO. 10573

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                           MEMORANDUM OPINION1

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                                  I. INTRODUCTION

      A jury convicted Appellant Thomas George Craaybeek of aggravated

assault by threat on a public servant and assessed his punishment at life

imprisonment; the trial court sentenced him accordingly. Appellant raises four

issues:      two alleging charge error based upon an incorrect definition of


      1
          See Tex. R. App. P. 47.4.
“knowingly” and two alleging error at the punishment phase of trial by the

exclusion of evidence that Appellant contends constituted mitigation evidence.

Because Appellant did not suffer egregious harm from the unobjected-to charge

error and because the trial court did not err by excluding the evidence that

Appellant contends constituted mitigation evidence, we will affirm.

                   II. FACTUAL AND PROCEDURAL BACKGROUND

      On November 28, 2014, at approximately 6 p.m., police received a 9-1-1

call that Appellant had shot his wife in their home.        State Trooper James

Lattimore responded to a dispatch issued by the Young County Sheriff’s

Department and drove his marked patrol vehicle to Appellant’s home. Trooper

Lattimore testified that he activated the vehicle’s overhead red and blue lights as

well as his flashing white lights and that he was wearing his uniform.           He

described the lights as very distinctive and very bright. An Olney Police Officer in

a marked patrol car was also at the scene; after discussing the situation, Trooper

Lattimore and the Olney police officer decided to wait for officers from the Young

County Sherriff’s Department to arrive.       While they were waiting, multiple

gunshots were fired from the carport area of Appellant’s home.             Trooper

Lattimore heard “the snap” of bullets going by his head in rapid succession. After

Young County Sheriff’s Deputies arrived, “continual” volleys of gunfire erupted

from various locations. Trooper Lattimore described the shots as “going right by

us.” After negotiations, Appellant eventually surrendered. Captain Tim Bay with

the Young County Sheriff’s Department testified that he believed Appellant had


                                         2
not been trying to kill anyone but had merely intended to “pin them down” and

had only wanted to keep the officers off of his property.

      The State indicted Appellant for aggravated assault by threat on a public

servant.2 The indictment alleged that Appellant had

      intentionally and knowingly threaten[ed] James Lattimore with
      imminent bodily injury by shooting at him, and did then and there
      use or exhibit a deadly weapon, to-wit: a firearm, during the
      commission of said assault, and the [Appellant] did then and there
      know that the said James Lattimore was then and there a public
      servant, to-wit: Texas Department of Public Safety Trooper . . . .

                       III. APPELLANT’S JURY-CHARGE ISSUES

      In his first issue, Appellant asserts that in the “Definitions” section of the

court’s charge, “knowingly” is incorrectly defined thereby permitting the jury to

convict him on a basis not alleged in the indictment. In his second issue, he

contends that the grammatical and typographical errors contained in the

definition of “knowingly” misled and confused the jury, which again permitted the

jury to convict him on a basis not alleged in the indictment.

      The abstract portion of the charge on guilt-innocence, under a bolded

heading titled, “Definitions,” stated:

      3. A person acts knowingly or with knowledge, with respect to the
      nature of his conduct [when he is aware of the nature of his conduct]
      or to circumstances surrounding his conduct or that the
      circumstances exist. A person acts knowingly, or with knowledge,
      with respect to a result of his conduct when he is aware that his
      conduct when he is aware that his conduct is reasonably certain to
      cause the result. [Emphasis added.]

      2
       See Tex. Penal Code Ann. § 22.02(b)(2)(B) (West 2011).


                                         3
This definition of “knowingly” is a garbled version of the definition provided in the

penal code. See Tex. Penal Code Ann. § 6.03(b) (West 2011). The bracketed

portion of the above definition shows what was erroneously left out.            The

italicized portion shows what was erroneously inserted.3 Appellant did not object

to the charge at trial.

      “[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

occurred, whether it was preserved determines the degree of harm required for

reversal. Id. Unpreserved charge error warrants reversal only when 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 must be performed on


      3
       The definition should read:

      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. A person acts knowingly, or with knowledge,
      with respect to a result of his conduct when he is aware that his
      conduct is reasonably certain to cause the result.

Id.


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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.

      We address each of the four factors articulated in Almanza. See id. at

171; Valencia v. State, No. 02-14-00406-CR, 2015 WL 7820384, at *3 (Tex.

App.—Fort Worth Dec. 3, 2015, no pet.) (mem. op., not designated for

publication). We review the entire jury charge, the state of the evidence, the

argument of counsel, and any other relevant information revealed by the trial

record as a whole. Almanza, 686 S.W.2d at 171.

      Looking to the entirety of the court’s charge, the application paragraph

provides:




                                         5
           You must decide whether the [S]tate has proved, beyond a
      reasonable doubt, five elements. The elements are that—

            1. the defendant, Thomas George Craaybeek, in Young
               County, Texas, on or about 28th day November, 2014,

            2. intentionally or knowingly threaten[ed] James Lattimore
               with imminent bodily injury by shooting at him,

            3. and did then and there use or exhibit a deadly weapon, to
               wit: a firearm, during the commission of said assault, and

            4. the defendant did then and there know that the said James
               Lattimore was then and there a public servant, to wit:
               Texas Department of Public Safety Trooper, and

            5. that the said James Lattimore was then and there lawfully
               discharging an official duty, to wit: responding to a report
               of a gunshot victim.

      Appellant concedes that the application paragraph correctly applies the

law. Where the application paragraph correctly applies the law, Appellant cannot

show egregious harm. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App.

1999) (“Where the application paragraph correctly instructs the jury, an error in

the abstract instruction is not egregious.”), cert. denied, 529 U.S. 1102 (2000);

Anaya v. State, 381 S.W.3d 660, 666 (Tex. App.––Amarillo 2012, pet. ref’d)

(same); see also Urquiza v. State, No. 08-08-00016-CR, 2010 WL 1230664, at *2

(Tex. App.—El Paso Mar. 31, 2010, no pet.) (mem. op., not designated for

publication) (same); Coleman v. State, No. 08-05-00258-CR, 2007 WL 853116,

at *4 (Tex. App.—El Paso Mar. 22, 2007, no pet.) (mem. op., not designated for

publication) (same).    Because the plain language of the jury instructions

contained in the application paragraph correctly instructed the jury on the law as


                                        6
applied to Appellant, the first Almanza factor favors a finding that the error was

not egregious.

       Looking to the state of the evidence, no evidence exists that Appellant ever

actually wounded Trooper Lattimore; Appellant shot at Trooper Lattimore. The

evidence established, therefore, that the aggravated-assault-by-threat-on-a-

public-servant offense Appellant was charged with was based on the nature of

Appellant’s conduct and not on the result of his conduct, thus minimizing any

harm stemming from the “result-of-offense” language erroneously included in the

charge’s definition of knowingly. Regarding Appellant’s “nature-of-the-offense”

knowledge that he was shooting at a public servant, Trooper Lattimore testified

that he arrived at Appellant’s home in uniform in a marked patrol vehicle with his

overhead red and blue lights, as well as his flashing white lights, activated. The

state of the evidence is such that it supports the jury’s conclusion that Appellant

knew he was shooting at a public servant and makes it unlikely that the garbled

definition of knowingly prevented the jury from accurately implementing the

commands of the application paragraph.

       Looking to the arguments of counsel, during closing argument the

prosecutor stated: “We have proved to you beyond a reasonable doubt every

single element in that offense. He intentionally and knowingly threatened bodily

injury.”   The prosecutor continued, “The actor knows the person is a public

servant. Obviously he knew these were officers. He said so in his interviews.”

Accordingly, the State stressed that Appellant’s offense was a nature-of-conduct


                                         7
offense. The prosecutor’s argument was consistent with the charged offense

and with the application paragraph, and diminished the likelihood that Appellant

was harmed by the erroneous definition of knowingly set forth in the “Definitions”

portion of the charge.    If anything, the prosecutor’s arguments clarified any

confusion the definition might have caused.

      Looking to other relevant information revealed by the record as a whole,

during voir dire, the prosecutor explained:

            This is what we have to prove. . . .

             First that the defendant -- so we need to bring in evidence
      identifying the defendant.

            -- on or about a certain date -- we’ll give you the date of the
      offense.

            -- in Young County, Texas -- that’s the location.

           -- intentionally or knowingly -- and that’s essentially just
      knowing whether or not the person appreciated the nature of their
      conduct. Did they know what they were doing.

             -- threaten a public servant with imminent bodily injury -- and a
      public servant can be a peace officer as long as they work for a
      governmental entity like a municipality or the city or the county or the
      state.

          -- and used or exhibited a deadly weapon during the
      commission of said offense.

From the outset of trial, the State framed Appellant’s offense as a nature-of-

conduct offense and explained that to be guilty, Appellant had to have known he

was threatening a public servant. Thus, the record as a whole does not show

any potential that the erroneous definition of knowingly contained in the charge


                                         8
dovetailed in any way with other occurrences at trial that would increase the

impact of the charge’s erroneous definition of knowingly.

      Having examined the four Almanza factors and having concluded that

none of them weigh in favor of egregious harm, we hold that the erroneous

definition of knowingly did not deprive Appellant of a valuable right, vitally affect

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

more persuasive. See Almanza, 686 S.W.2d at 171; Taylor, 332 S.W.3d at 490.

Because Appellant has not shown egregious harm, we overrule his first and

second issues.

                    IV. APPELLANT’S ISSUES CHALLENGING THE
                     EXCLUSION OF EVIDENCE AT PUNISHMENT

      In his third and fourth issues, Appellant argues that that trial court abused

its discretion by excluding the testimony of Steve Richie, a licensed chemical

dependency counselor. Outside the presence of the jury, Appellant proffered

Richie’s “expert” testimony on “blackouts as they relate to alcohol abuse” for

mitigation purposes at the punishment phase of trial. Appellant claims that the

trial court abused its discretion by excluding Richie’s testimony on the ground

that Richie was not “qualified to go into (blackouts)”––issue three—and on the

ground that it did not “meet the criteria for . . . diminished capacity”––issue four.

      Richie testified outside the presence of the jury that he was in court to offer

testimony about blackouts as they relate to alcohol and drug abuse.                 By

blackouts, he meant “no memory of what took place when [the defendant was]



                                          9
under the influence of drugs or alcohol or both.” He added that blackouts kept

“short-term memory from being filed as long term.”

      Appellant argues evidence exists that he had taken prescription

medications and consumed large amounts of alcohol and that his memory

problems might be explained by blackouts.         Appellant claims that Richie’s

testimony was relevant because during a video-recorded interview with Captain

Bay, which was played for the jury at guilt-innocence, Appellant repeatedly

professed not to remember what had happened. Appellant points out that when

Captain Bay testified at guilt-innocence, he described Appellant as deceitful;

Captain Bay testified, “I don’t believe for one minute he wasn’t recalling. He was

just wanting to hide the fact of whatever . . . however you want to say it,

admitting, confessing, to whatever took place.”

      After hearing Richie’s testimony outside the present of the jury, the trial

court indicated that although Richie’s testimony might be relevant to Appellant’s

mens rea and to the issue of guilt, because the jury had already decided guilt,

Richie’s testimony would confuse the jury. The trial court denied Appellant’s

request to present Richie’s testimony to the jury at punishment.

      An appellate court reviews a trial court’s exclusion of evidence for an

abuse of discretion. Montgomery v. State, 810 S.W.2d 372, 391 (Tex. Crim. App.

1990) (op. on reh’g). An abuse of discretion is established “only when the trial

judge’s decision was so clearly wrong as to lie outside that zone within which




                                        10
reasonable persons might disagree.” Cantu v. State, 842 S.W.2d 667, 682 (Tex.

Crim. App. 1992), cert. denied, 509 U.S. 926 (1993).

      Here, even assuming—as Appellant asserts in his third issue—that Richie

was qualified to testify as an expert, Appellant proffered Richie’s testimony

concerning blackouts as related to alcohol abuse to explain Appellant’s initial lack

of memory concerning the events on the evening of the offense—as reflected in

the video of Appellant’s interview with law enforcement that was admitted into

evidence at guilt-innocence.4     Richie’s testimony was therefore not proper

mitigation evidence. See Tex. Penal Code Ann. § 8.04(b); Tex. R. Evid. 402;

Howard, 239 S.W.3d at 365 (“[I]t is well settled that lack of memory is not the

same thing as intoxication; thus, evidence showing loss of memory is not

sufficient to require an instruction on temporary insanity.” (quoting Reyna v.

State, 11 S.W.3d 401, 403 (Tex. App.––Houston [1st Dist.] 2000, pet. ref’d))).

Because Richie’s testimony concerning blackouts as related to alcohol abuse

      4
        Appellant did not proffer Richie’s testimony to establish temporary insanity
by reason of intoxication. Evidence of temporary insanity caused by intoxication
may be introduced to mitigate the punishment imposed for an offense. See Tex.
Penal Code Ann. § 8.04 (West 2011). Courts must submit a mitigating
instruction on temporary insanity by intoxication only if the evidence tends to
show the intoxication caused temporary insanity in the defendant. Arnold v.
State, 742 S.W.2d 10, 13 (Tex. Crim. App. 1987). To raise the issue of
temporary insanity by intoxication, the evidence must tend to show both that the
defendant was intoxicated and that his intoxication caused him (1) not to know
his conduct was wrong or (2) to be incapable of conforming his conduct to the
requirements of the law he violated. Id. That evidence is not present here. Lack
of memory is not the same thing as intoxication; therefore, evidence showing a
loss of memory is insufficient to require an instruction on temporary insanity.
Howard v. State, 239 S.W.3d 359, 365 (Tex. App.—San Antonio 2007, pet. ref’d).


                                        11
was not admissible as mitigation evidence in this case, we hold that the trial court

did not abuse its discretion by excluding Richie’s testimony.5        We overrule

Appellant’s fourth issue.6

                                 V. CONCLUSION

      Having overruled Appellant’s dispositive issues, we affirm the trial court’s

judgment.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

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

SUDDERTH, J., concurs without opinion.

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

DELIVERED: August 26, 2016



      5
        To the extent Appellant offered Richie’s testimony to mitigate prejudice
stemming from a belief by the jury that he had lied during his interview with
Captain Bay about not remembering what had happened, Appellant was
attempting to show he was telling the truth about not remembering based upon
an alcohol- or drug-induced blackout. Appellant’s proffered testimony was an
improper attempt to offer extrinsic evidence to support his character for
truthfulness. See Tex. R. Evid. 608(b) (“A Witness’s Character for Truthfulness
or Untruthfulness”).
      6
       Having determined that Richie’s proffered testimony was not admissible
as mitigation evidence, we need not address Appellant’s third issue challenging
an additional ground stated by the trial court for the exclusion of Richie’s
testimony––that Richie was not qualified under rule 702. See Tex. R. App. P.
47.1 (requiring appellate court to address issues necessary for final disposition of
appeal).


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