                                        In The

                                 Court of Appeals

                     Ninth District of Texas at Beaumont

                               _________________

                                NO. 09-17-00196-CR
                               _________________

                    WILLIAM MICHAEL MUNN, Appellant

                                           V.

                        THE STATE OF TEXAS, Appellee
________________________________________________________________________

                     On Appeal from the 411th District Court
                              Polk County, Texas
                            Trial Cause No. 24601
________________________________________________________________________

                           MEMORANDUM OPINION

      A Polk County grand jury indicted William Michael Munn for the offense of

evading arrest or detention with a vehicle, a third-degree felony. See Tex. Penal Code

Ann. § 38.04(a), (b) (West 2016).1 The indictment also alleged one prior felony

conviction for purposes of enhancement which, if true, would make the offense a


      1
         We cite to the current version of the statute, as it does not affect the outcome
of this appeal.
                                            1
second-degree felony. See Tex. Penal Code Ann. § 12.42(a) (West Supp. 2018).

Munn pled not guilty, but the jury found him guilty. During sentencing, Munn also

pled not true to the enhancement paragraph. After receiving a presentencing

investigation report, the trial judge found the enhancement paragraph to be true and

sentenced Munn to fifteen years confinement. In one issue, Munn asserts the

application paragraph of the court’s charge did not include as an element of the

offense that he knew the person from whom he fled was a peace officer attempting

to lawfully detain him, and this charge error caused him egregious harm.

                                   Background

      In the early morning hours of September 26, 2015, Texas Department of

Public Safety Trooper Ramey Bass was in his marked Dodge Charger. While parked

at a gas station on Highway 59 in Polk County, Texas with his windows down,

Trooper Bass heard a vehicle approaching at a high rate of speed. He observed a

black Ford Mustang GT traveling northbound on Highway 59. He was able to get a

radar reading on the vehicle’s speed, which was over one hundred miles per hour.

Trooper Bass testified he began following the vehicle and activated his lights and

sirens in an attempt stop the driver. Instead of slowing down, Trooper Bass testified

the vehicle accelerated to speeds between 130 to 140 mph.



                                         2
      At trial, the State admitted the dashcam video of the pursuit. The patrol

vehicle’s lights could be seen flashing in the video. Many other cars on the roadway

pulled over to the shoulder as the trooper’s vehicle approached. During the pursuit,

the suspect’s vehicle could be seen approaching several other cars on the roadway

and swerving at the last moment to avoid them. After traveling through several small

communities on Highway 59 in Polk County, the Mustang veered off the road to the

left in the town of Corrigan, Texas, crashing through several fences. Munn cannot

be seen in the video, but law enforcement officers can be heard repeatedly telling

him to show his hands, indicating he did not comply. Munn did not speak to Trooper

Bass or any of the other law enforcement officers when they made contact. Trooper

Bass can be heard saying repeatedly on the video that it appeared Munn was under

the influence of something. However, blood test results taken from Munn that day

later came back negative. At trial, Trooper Bass testified Munn was “in some sort of

state. I don’t know if it was mental or drug induced.” Trooper Bass testified Munn

did not speak, comply, or do anything they asked him to do. The trooper said Munn

just stared at them and did not appear to have any comprehension of what they were

saying to him.

      The only exhibit admitted during the guilt or innocence phase of the trial was

the dashcam video, and Trooper Bass was the only witness to testify. During the

                                         3
charge conference, neither the State nor the defense had any objections to the

proposed charge. The court’s charge to the jury contained the following language in

the abstract portion, “[o]ur law provides that a person commits an offense of

[e]vading [a]rrest or [d]etention if he intentionally flees from a person he knows is

a peace officer attempting lawfully to arrest or detain him.” (Emphasis added).

However, the application portion of the charge read as follows:

            Now, if you find from the evidence beyond a reasonable doubt
      that on or about the 26th day of September, 2015, in Polk County,
      Texas, the Defendant, William Michael Munn, did intentionally flee
      from Ramey Bass, hereafter styled the Complainant, a peace officer
      employed by Department of Public Safety Highway Patrol, lawfully
      attempting to detain the Defendant, and the Defendant used a motor
      vehicle while he was in flight[,] then you will find the Defendant guilty
      as charged.

The application paragraph omitted the language regarding Munn’s knowledge that

Trooper Bass was a peace officer. The indictment, however, contained the

“knowing” language, which the trial judge read in open court after the jury was

impaneled but prior to opening statements.

      The jury convicted Munn, and having found the enhancement paragraph true,

the trial court sentenced Munn to fifteen years in TDCJ. This appeal ensued.

                               Standard of Review

      The trial court is required to provide the jury with a written charge setting

forth the law applicable to the case prior to the presentation of closing statements.
                                          4
Tex. Code Crim. Proc. Ann. art. 36.14 (West 2007). If there is error in the court’s

charge “the judgment shall not be reversed unless the error appearing from the record

was calculated to injure the rights of defendant, or unless it appears from the record

that the defendant has not had a fair and impartial trial.” Id. art. 36.19 (West 2006).

Almanza v. State sets out the standard of review for jury charge error. 686 S.W.2d

157, 171 (Tex. Crim. App. 1985). Our review of charge error is a two-step process.

See id. First, we must determine if there was error in the court’s charge. See id.; see

also Taylor v. State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011); Ngo v. State, 175

S.W.3d 738, 743 (Tex. Crim. App. 2005). If a reviewing court determines there was

error in the charge, it then assesses the level of harm. Taylor, 332 S.W.3d at 489;

Ngo, 175 S.W.3d 743–44; Almanza, 686 S.W.2d at 171.

      Almanza construed article 36.19 as providing two distinct standards of jury

charge error. See Taylor, 332 S.W.3d at 489; Almanza, 686 S.W.2d at 171. Almanza

further explained the two standards set forth in article 36.19 depended upon whether

a defendant made a timely objection to the charge. See Almanza, 686 S.W.2d at 171;

see also Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016); Taylor,

332 S.W.3d at 489. If a timely objection was made in the trial court, a reviewing

court will reverse if the error is “calculated to injure the rights of [the] defendant,”

which the Court of Criminal Appeals has interpreted to mean “some harm.” Tex.

                                           5
Code. Crim. Proc. Ann. art. 36.19; Taylor, 332 S.W.3d at 489; Ngo, 175 S.W.3d at

743; Almanza, 686 S.W.2d at 171. On the other hand, if a defendant does not make

a timely objection to the charge, the reviewing court will not reverse unless the error

resulted in egregious harm to the defendant, which means he did not receive a “fair

and impartial trial.” Tex. Code. Crim. Proc. Ann. art. 36.19; Marshall, 479 S.W.3d

at 843; Taylor, 332 S.W.3d at 489; Almanza, 686 S.W.2d at 171. In determining

whether charge error is egregious we consider: (1) the entirety of the jury charge;

(2) the state of the evidence; (3) counsel’s arguments; and (4) any other relevant

information contained in the entire trial record. See Marshall, 479 S.W.3d at 843;

Taylor, 332 S.W.3d at 489; Almanza 686 S.W.2d at 171.

                                       Analysis

      The statute governing the offense of evading arrest or detention provides “[a]

person commits an offense if he intentionally flees from a person he knows is a peace

officer . . . attempting lawfully to arrest or detain him.” See Tex. Penal Code Ann. §

38.04(a). A defendant is entitled to have the trial court submit a written charge to the

jury containing the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14.

Failure to instruct the jury on an element of the offense is subject to a harmless-error

analysis. Olivas v. State, 202 S.W.3d 137, 143 (Tex. Crim. App. 2006). In the present

case, although the trial court submitted the offense in the abstract portion of the

                                           6
charge, it failed to include “knows is a peace officer” in the application portion of

the charge.2 See Tex. Penal Code Ann. § 38.04(a).

      The application paragraph applies the pertinent penal law, abstract definitions,

and general principles to the specific facts and the indictment allegations. Vasquez

v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012). Since the application

paragraph “specifies the factual circumstances under which the jury should convict

or acquit, it is the ‘heart and soul’ of the jury charge.” Id. at 367. It is this paragraph

that authorizes the jury to act. Jones v. State, 815 S.W.2d 667, 669 (Tex. Crim. App.

1991).

       Because the application paragraph omitted the element that Munn knew

Trooper Bass was a peace officer, we conclude there was error in the charge. See

Tex. Penal Code Ann. § 38.04(a); Tex. Code Crim. Proc. Ann. art. 36.14. At trial,

Munn did not object to the court’s charge. Accordingly, we will conduct an

egregious harm analysis. See Marshall, 479 S.W.3d at 843; Taylor, 332 S.W.3d at

489; Almanza, 686 S.W.2d at 171.




      2
        The abstract portion of the charge did not include the operation of a motor
vehicle, but it was included in the application paragraph. Munn does not complain
about the absence of a motor vehicle in the abstract portion of the charge, so we do
not address it in this opinion. See Tex. Penal Code Ann. § 38.04(b)(2)(A) (West
2016).
                                          7
      In determining whether Munn suffered egregious harm because of the charge

error, we first look to the charge in its entirety. See Marshall, 479 S.W.3d at 843;

Almanza, 686 S.W.2d at 171. Despite the application paragraph not containing the

requisite mental element that Munn knew Trooper Bass was a peace officer, the

abstract portion of the charge expressly provided a “person commits an offense of

[e]vading [a]rrest or [d]etention if he intentionally flees from a person he knows is a

peace officer attempting lawfully to arrest or detain him.” The charge also defined

“peace officer” for the jury and noted in the application paragraph that Ramey Bass

was “a peace officer employed by Department of Public Safety Highway Patrol[.]”

Moreover, the abstract portion was contained on the same page of the charge as the

application portion, and they were separated by a mere two paragraphs.

      The evidence and testimony at trial showed Trooper Bass was in a marked

vehicle with lights and sirens activated as he pursued Munn. Moreover, the video

evidence at trial revealed other drivers were aware a police vehicle was attempting

to make a stop as shown by vehicles moving to the shoulder and stopping as Trooper

Bass approached.

      The arguments of counsel contained explicit references to the “knowing”

portion of the statute. The State argued in closing Munn intentionally fled from a



                                          8
person he knew to be a peace officer and that the trooper was in a marked vehicle

with the lights on.

       The record further includes the State’s voir dire of the jury panel telling them

that it must prove the elements of the offense which were “that the defendant on a

certain day in Polk County, Texas, intentionally or knowingly fled from a person he

knew was a peace officer . . . attempting to lawfully arrest or detain him[.]” The trial

court also read the indictment in front of the jury, which included the allegation

Munn knew Trooper Bass was a peace officer.

       An additional consideration to the foregoing is whether the error related to a

“contested issue.” See Kucha v. State, 686 S.W.2d 154, 156 (Tex. Crim. App. 1985);

see also Goff v. State, 720 S.W.2d 94, 99 (Tex. Crim. App. 1986) (holding no

egregious harm where error related to incidental theory of defense). In closing, the

defense argued the key question was Munn’s intent and whether he intended to flee

from an officer. At trial, defense counsel asked Trooper Bass whether the vehicle

was inspected for any mechanical issues that would explain Munn’s failure to stop.

This line of questioning was consistent with the defensive theory that Munn lacked

intent. Although the defense pointed out Munn appeared to be in an altered mental

state, there was never an argument that Munn was unaware Trooper Bass was a peace

officer.

                                           9
      Based on the foregoing, we determine Munn did not suffer egregious harm

because of the charge error. We overrule Munn’s sole issue on appeal.

                                    Conclusion

      We conclude the trial court erred by not including the “knowing” language in

the application portion of the charge to the jury; however, Munn did not suffer

egregious harm as a result. Accordingly, we affirm the judgment of the trial court.

      AFFIRMED.



                                             ________________________________
                                                     CHARLES KREGER
                                                           Justice

Submitted on August 15, 2018
Opinion Delivered October 31, 2018
Do Not Publish

Before McKeithen, CJ, Kreger and Johnson, JJ.




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