                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-10-00079-CR


TINA MARIE BAKER                                                      APPELLANT

                                         V.

THE STATE OF TEXAS                                                          STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                        MEMORANDUM OPINION1
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      Appellant Tina Marie Baker appeals her conviction for burglary of a

habitation. In two points, she argues that the evidence is insufficient to support

the jury‘s verdict and that the trial court erred by failing to define an element of

the offense in the jury charge. We affirm.




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

The State’s version of the facts

      On January 29, 2009, Zach Oakley, a high school student, lived at a house

on Bentwater Parkway in Granbury. That night, Zach and his mother, Dana

Baker, were inside the house‘s open attached garage while they were packing a

moving truck.    Zach‘s stepdad and Dana‘s husband, Anthony Baker, was

sleeping in his room. Zach‘s cousin, Kayla, was packing boxes in the kitchen.

      At about midnight, appellant, who is Anthony‘s ex-wife, arrived at the

house, threw eggs at the moving truck, yelled an obscenity at Dana, and ran into

the garage. Appellant grabbed Dana‘s hair and pulled her to the ground, and

Zach ran into the house, called 911, and woke up Anthony. 2 When Zach came

back to the garage, he saw appellant and Dana fighting on the ground while

Kayla and Anthony were trying to pull them apart.3

      Anthony eventually pulled appellant off of Dana, and when Zach told

appellant that the police were coming, appellant quickly left in a car with Bryan

Anderson, who had come to the house with her. Because Zach had given the

dispatcher the car‘s license plate number, the police found appellant and Bryan.

Appellant, who smelled like alcohol, admitted that she had thrown eggs at the

moving truck. She also initially told an officer that she had been assaulted by

      2
       The State introduced a recording of the 911 call.
      3
       Dana said that there was ―hair all over the garage,‖ that she was ―hurt
badly,‖ and that she was sore with bruises for a couple of days after the fight.


                                    2
three females but later told the officer that she was assaulted by two females and

a male. When another officer searched the car that appellant and Anderson

were in, he found an open alcoholic drink and unopened alcoholic drinks.

Anthony, Dana, Zach, and Kayla gave statements to a Hood County Sheriff‘s

Department sergeant, and the sergeant directed appellant‘s arrest.

Appellant’s version of the facts

      On January 29, 2009, appellant and Bryan became drunk.             Appellant

bought some eggs, threw them at Anthony‘s motorcycle shop, and then went with

Bryan to the Bentwater Parkway house.        When they arrived there, appellant

became upset and threw eggs at the moving truck. She then heard Dana yell,

―Bring it on, bitch,‖ and Dana and appellant moved toward each other.4 Appellant

met Dana outside the garage, at which time Kayla pushed appellant from behind.

Appellant held Dana‘s hair to defend herself while Dana, Kayla, and Anthony

kicked and punched her. Appellant and Bryan eventually left and were stopped

and arrested while they were on their way to the sheriff‘s department to report

what had happened.5




      4
       Dana denied making that statement.
      5
        Bryan testified that he stayed in his car while appellant threw eggs at the
truck, but then he heard appellant screaming, saw some commotion, and found
appellant on her back in the garage while she was being beaten by Dana and
Kayla. Bryan conceded that he did not personally know who started the fight
between Dana and appellant.


                                    3
Procedural history

      A grand jury indicted appellant for burglary of a habitation. Appellant pled

not guilty, but a jury found her guilty. After hearing evidence on punishment, the

jury assessed eight years‘ confinement and a $6,000 fine but recommended

suspension of that sentence so that appellant could be placed on community

supervision.   The trial court signed a judgment incorporating the jury‘s

punishment recommendation, and appellant filed notice of this appeal.

                            Evidentiary Sufficiency

      In her first point, appellant argues that the evidence is insufficient to show

that she committed burglary.

Standard of review and applicable law

      In our review of the sufficiency of the evidence to support a conviction, we

view all of the evidence in the light most favorable to the prosecution to

determine whether any rational trier of fact could have found the essential

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S.

307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778

(Tex. Crim. App. 2007). This standard gives full play to the responsibility of the

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S.

at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.




                                    4
      The trier of fact is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v.

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075

(2009). Thus, when performing an evidentiary sufficiency review, we may not re-

evaluate the weight and credibility of the evidence and substitute our judgment

for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim.

App. 2007).    Instead, we Adetermine whether the necessary inferences are

reasonable based upon the combined and cumulative force of all the evidence

when viewed in the light most favorable to the verdict.@ Hooper v. State, 214

S.W.3d 9, 16–17 (Tex. Crim. App. 2007).

      Paragraph two of the indictment alleged that appellant ―did then and there

intentionally or knowingly, without the effective consent of Dana Baker, the owner

thereof, enter a habitation and did attempt to commit or commit assault.‖

See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).6 The penal code states

that a ―habitation‖ includes ―each separately secured or occupied portion of the

structure‖ and ―each structure appurtenant to or connected with the structure.‖

Id. § 30.01(1) (Vernon 2003); see White v. State, 630 S.W.2d 340, 342 (Tex.

App.—Houston [1st Dist.] 1982, no pet.) (holding that a house‘s attached garage


      6
        Paragraph one of the indictment alleged an alternative theory of burglary;
it stated that appellant ―did then and there intentionally, without the effective
consent of Dana Baker, . . . enter a habitation with intent to commit assault.‖
See Tex. Penal Code Ann. § 30.02(a)(1). However, the jury charge instructed
the jury only about paragraph two.


                                    5
was a habitation under the penal code‘s definition).         An ―owner‖ includes

someone who has possession of property ―or a greater right to possession of the

property than the actor.‖ Tex. Penal Code Ann. § 1.07(a)(35)(A) (Vernon Supp.

2010); Ronk v. State, 250 S.W.3d 467, 470 (Tex. App.—Waco 2008, pet. ref‘d).

Analysis

      Appellant argues that the State failed to prove that (1) she intended to

assault Dana inside a habitation, (2) the garage was not open to the public, and

(3) appellant went into the garage voluntarily (she asserts that she was pushed

into it). The facts recited above presented the jury with conflicting theories about

how appellant entered the garage and whether she assaulted Dana or merely

defended herself. But in our evidentiary sufficiency review, we must presume

that the jury resolved any conflicting inferences in favor of the prosecution and

defer to that resolution.7 Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton,

235 S.W.3d at 778.

      If the jury believed the witnesses called by the State and disbelieved

appellant‘s and Bryan‘s testimony, it could have rationally determined that

appellant ran into the open garage, grabbed Dana‘s hair, and pulled her to the

ground, causing her pain.     This evidence shows that appellant attempted to

commit or committed assault in the garage.          See Tex. Penal Code Ann.


      7
       The jury had reasons to disbelieve appellant‘s testimony because she
admitted that she was drunk on the night in question and that she had initiated
the dispute that night by throwing eggs at the motorcycle shop and moving truck.


                                     6
§ 22.01(a)(1) (Vernon Supp. 2010) (stating that a person can commit assault by

intentionally, knowingly, or recklessly causing bodily injury to another);

id. § 1.07(a)(8) (stating that ―bodily injury‖ includes ―physical pain‖); see also

Thomas v. State, 303 S.W.3d 331, 333–34 (Tex. App.—El Paso 2009, no pet.)

(holding that the evidence was sufficient to prove assault when a wife felt pain

after her husband pushed her, slapped her back, and caused her to stumble).

      Appellant also notes that the garage was open and ―[a]nyone could freely

walk up and into‖ it.   But appellant has not cited authority showing that the

garage‘s door being open changed its status as a habitation. Cf. White, 630

S.W.2d at 341–42 (holding that a garage that did not have a front door was a

habitation even though it was not enclosed); see also Tennyson v. State, No. 11-

92-00107-CR, 1993 WL 13141619, at *2 (Tex. App.—Eastland June 24, 1993, no

pet.) (not designated for publication) (holding that an attached carport, which was

open on three sides, qualified as a habitation). Also, even though appellant lived

at the Bentwater Parkway house before she divorced Anthony, Dana and

Anthony testified that appellant did not have permission to be in the garage, and

Anthony said that he had told appellant not to come there. Appellant admitted

that she knew that Dana did not want her to be there. Thus, the jury could have

rationally found that despite the garage‘s door being opened, it qualified as a

habitation that appellant did not have consent to enter.




                                     7
        For all of these reasons, we hold that the evidence is sufficient to support

appellant‘s conviction. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton,

235 S.W.3d at 778. We overrule appellant‘s first point.

                                 Jury Charge Error

        In her second point, appellant contends that the trial court erred by failing

to define ―assault‖ in the jury charge when the jury had to find that appellant

attempted to commit or committed assault to convict her of burglary.

Standard of review and applicable law

        A person commits assault when the person intentionally, knowingly, or

recklessly causes bodily injury to another; intentionally or knowingly threatens

another with imminent bodily injury; or intentionally or knowingly causes physical

contact with another when the person knows or should reasonably believe that

the other will regard the contact as offensive or provocative. 8 Tex. Penal Code

Ann. § 22.01(a). Appellant did not object to the omission of an assault definition

at trial.

        Appellate review of error in a jury charge involves a two-step process.

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v.

State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009).               Initially, we must

determine whether error occurred; if it did, we must then evaluate whether



        8
      Courts have held that the variations of assault comprise different offenses.
See Dolkart v. State, 197 S.W.3d 887, 893 (Tex. App.—Dallas 2006, pet. ref‘d).


                                      8
sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at

731–32.

      If there is error in the court‘s charge but the appellant did not preserve it at

trial, we must decide whether the error was so egregious and created such harm

that the appellant did not have a fair and impartial trial—in short, that Aegregious

harm@ has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App.

1985) (op. on reh=g);9 see Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006);

Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Hutch v. State, 922

S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm is the type and level of

harm that affects the very basis of the case, deprives the defendant of a valuable

right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264 & n.15;

Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex. Crim. App. 2006); Almanza, 686

S.W.2d at 172.

      In making an egregious harm determination, Athe 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 Hutch, 922 S.W.2d at 172–


      9
       Appellant argues that the trial court‘s failure to define assault was a
―fundamental error.‖ Courts have indicated that a ―fundamental error‖ is one that
has caused egregious harm under Almanza. See Jefferson v. State, 99 S.W.3d
790, 793 (Tex. App.—Eastland 2003, pet. ref‘d); Thomas v. State, 849 S.W.2d
405, 406–07 (Tex. App.—Fort Worth 1993, no pet.).


                                     9
74. The purpose of this review is to illuminate the actual, not just theoretical,

harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm is a difficult

standard to prove and must be determined on a case-by-case basis. Ellison v.

State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch, 922 S.W.2d at 171

          A trial court must give a jury ―a written charge distinctly setting forth the law

applicable to the case.‖ Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007).

Thus, the trial court must instruct the jury on ―each element of the offense or

offenses charged and include in its charge each statutory definition that affects

the meaning of an element of the offense. If a phrase, term, or word is statutorily

defined, the trial court must submit the statutory definition to the jury.‖ McIlroy v.

State, 188 S.W.3d 789, 797 (Tex. App.—Fort Worth 2006, no pet.) (citation

omitted); see Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986);

Harkins v. State, 268 S.W.3d 740, 742–43 (Tex. App.—Fort Worth 2008, pet.

ref‘d).

Analysis

          The trial court did not define assault in its jury charge although that term is

statutorily defined. See Tex. Penal Code Ann. § 22.01(a). Therefore, the State

concedes, and we hold, that the trial court erred by not defining assault.

See McIlroy, 188 S.W.3d at 797; see also Lindsay v. State, 102 S.W.3d 223, 230

(Tex. App.—Houston [14th Dist.] 2003, pet. ref‘d) (holding that a trial court erred

by not defining ―criminal responsibility‖ when that term was statutorily defined).




                                          10
      ―An erroneous or incomplete jury charge, however, does not result in

automatic reversal of a conviction.‖       Abdnor, 871 S.W.2d at 731.     Appellant

contends that she suffered egregious harm because the jury was ―left with

nothing but an inference of what constitutes an ‗assault.‘‖ But although the jury

did not receive the definition of assault in the jury charge, the State provided the

definition during voir dire, in which the following colloquy occurred:

            [THE STATE]: . . . Can you think of a law, Ms. Burns, that
      would -- that we have about protecting your body? What are you
      protected from by the law?

             VENIREPERSON: Assault.

             [THE STATE]: Okay. Assault. Getting hit. And we‘re going
      to talk more about assault. . . . So we consider that very important
      that -- that your body is protected from unwanted intrusions by other
      people, I guess, just like your home is protected. . . .

             ....

             [THE STATE]: Okay. I want to get you comfortable with this
      idea, because it is rather unusual for most people.

             And what is an assault? And this is important, too, to know
      this, because, again, what you see on TV and what you hear might
      be two different things.

             Mr. Frederick, does it make sense to you that the definition,
      the legal definition of assault is intentionally o[r] knowingly causing
      bodily injury to someone? Does that make sense?

             VENIREPERSON: Yeah.

            [THE STATE]:       That pretty much what you thought it was
      going to be?

             VENIREPERSON: Uh-huh.




                                      11
            [THE STATE]: Did you know that the Texas definition of
      bodily injury is physical pain, something that causes physical pain?
      Have you ever heard that?

            VENIREPERSON: No I didn‘t, no.

             [THE STATE]: What did you have in mind as far as bodily
      injury goes? What did you think that was? Bleeding?

            VENIREPERSON: Marks, bruising.

             [THE STATE]: Okay. And that‘s one way to commit bodily
      injury. But the definition of bodily injury in Texas says something
      that causes pain. . . .

            ....

            [THE STATE]: . . . If the person who‘s been assaulted says,
      ―That caused me pain,‖ then that is enough for assault.

            ....

             [THE STATE]: . . . So in this case we’re talking about
      intentionally or knowingly doing something that causes physical
      pain, okay, intentionally or knowingly doing something that causes
      physical pain. [Emphasis added.]

We conclude that the jury‘s receipt of the correct definition of assault during voir

dire mitigated possible harm of that term being undefined in the jury charge.

See Fulcher v. State, 274 S.W.3d 713, 717 (Tex. App.—San Antonio 2008, pet.

ref‘d) (explaining that in ―considering whether jury charge error caused egregious

harm, we consider . . . counsels‘ statements during voir dire and at trial‖);

Cormier v. State, 955 S.W.2d 161, 163–64 (Tex. App.—Austin 1997, no pet.)

(holding that there was no egregious harm from the trial court‘s failure to define a

term in a punishment-phase jury charge because there was ―no reason to believe

that the jury did not remember the earlier definition‖ that it had been given);


                                     12
Jones v. State, 850 S.W.2d 236, 240–41 (Tex. App.—Fort Worth 1993, no pet.)

(concluding that there was no egregious harm from a jury charge that gave an

incomplete instruction about parole law when the State correctly explained the

application of parole law to the jury in its final argument); see also Mouton v.

State, 892 S.W.2d 234, 237 (Tex. App.—Beaumont 1995, pet. ref‘d) (holding that

there was no egregious harm even though a jury charge on aggravated robbery,

which required theft to be committed as an underlying offense, did not define

theft).

          Also, the ―state of the evidence, including the contested issues and the

weight of the probative evidence,‖ shows that the trial court‘s omission of an

assault definition was not egregiously harmful. See Allen, 253 S.W.3d at 264.

The evidence prompted the jury to believe either the State‘s factual theory or

appellant‘s factual theory, and it therefore created a conflict, but not an

ambiguity, on whether an assault occurred. The jury could have decided either

that (1) appellant obviously committed assault because she ran into the garage,

pulled Dana by her hair to the ground, and caused her pain (including bruising

and soreness), or (2) appellant obviously did not commit assault because after

appellant threw eggs at the moving truck, Dana, Kayla, and Anthony beat

appellant up.      Thus, the jury could have determined that appellant did not

intentionally, knowingly, or recklessly cause bodily injury to Dana (and therefore

did not assault her) only if it believed appellant‘s version of the facts; the jury did




                                      13
not have any basis to believe the testimony of the State‘s witnesses and still

conclude that the elements of assault did not occur.

      In other words, there is no act that appellant allegedly committed in this

case that straddles the line on the penal code‘s definition of assault; she either

committed assault (according to the State‘s witnesses) or did not commit assault

(according to her own witnesses). By returning a guilty verdict, the jury indicated

its choice to believe the State‘s witnesses; the jury therefore would have almost

certainly convicted appellant even if the definition of assault had been provided.

Stated another way, the trial court‘s failure to define assault did not vitally affect

appellant‘s defensive theories that she had consent to enter the garage or that

she did not initiate the physical contact with Dana. See id. at 264 & n.15.

      For these reasons, we hold that the trial court‘s error of not defining assault

in the jury charge did not cause egregious harm. See Almanza, 686 S.W.2d at

171–72. We overrule appellant‘s second point.

                                    Conclusion

      Having overruled both of appellant‘s points, we affirm the trial court‘s

judgment.

                                              TERRIE LIVINGSTON
                                              CHIEF JUSTICE

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

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

DELIVERED: November 24, 2010

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