                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-15-00126-CR


RICHARD LEE SIMMONS A/K/A                                            APPELLANT
RICHARD SMITH

                                        V.

THE STATE OF TEXAS                                                         STATE


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          FROM THE 355TH DISTRICT COURT OF HOOD COUNTY
                     TRIAL COURT NO. CR12714

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                        MEMORANDUM OPINION 1

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      Appellant Richard Lee Simmons a/k/a Richard Smith appeals his felony

conviction for assault against a member of his family or household. 2 In one

issue, he contends that the trial court erred by overruling his objection to a jury


      1
       See Tex. R. App. P. 47.4.
      2
       See Tex. Penal Code Ann. § 22.01(a)(1), (b)(2)(A) (West Supp. 2014).
instruction. Specifically, he argues that the jury instruction was contrary to the

language of the indictment and allowed the jury to reach a non-unanimous

verdict concerning the manner in which he committed the assault. We affirm.

                                Background Facts

      Appellant met M.B. (Monica) 3 in 2011.             They began a romantic

relationship, and he lived with her. One morning in October 2013, Monica and

appellant awoke early because appellant had a civil court hearing to attend.

When appellant could not find his cigarettes or his lighter, he became angry. He

began throwing things and commanded Monica to make him breakfast “so that

he could go see the judge at the courthouse.”

      Monica refused and went outside. Appellant eventually grabbed her by her

hair, pulled her to his truck, and told her that she must attend his court hearing

with him. In the process, he also hit her with his fists (including on her wrist

because “he knew it hurt” and on her face), kicked her, bit her, and spit on her.

Monica went to the courthouse with appellant.

      After appellant won his court case, he and Monica began to walk out of the

courthouse while he verbally abused her. Monica said, “I don’t have to put up

with this anymore. I’m going back inside.” Appellant responded by stating, “If

you do, you’ll go out in a body bag.” She went back inside to meet with Julie

Pritchett, a victim assistance coordinator at the county attorney’s office.

      3
      To protect the victim’s identity, we use an alias. See McClendon v. State,
643 S.W.2d 936, 936 n.1 (Tex. Crim. App. [Panel Op.] 1982).


                                          2
      At that meeting, Monica was distraught and desperate; to Pritchett, Monica

appeared to be “an emotional wreck.” Monica, who was injured on her wrist, said

that she had been assaulted and that she feared for her life.            Monica told

Pritchett that through the course of events that morning, appellant had slapped

and punched her head, spit on her, and punched her wrist. Robert Moon, who

was then a sheriff’s deputy in Hood County, took a statement from Monica. Like

Pritchett, he noticed Monica’s injured wrist. After Monica finished speaking with

Deputy Moon, she stayed for several days in a women’s shelter.

      A grand jury indicted appellant with assault by causing bodily injury to

Monica.    The indictment alleged that appellant had a familial or dating

relationship with Monica and that he had struck her on her head, wrist, and leg

and had pulled her hair. The indictment also alleged that appellant had been

previously convicted of assault against a member of his family or household.

Before trial, appellant filed several documents, including an election for the jury to

assess his punishment if he was convicted.

      At trial, appellant pled not guilty.      The jury considered the parties’

presentation of evidence and arguments and found him guilty. 4 After receiving

appellant’s plea of true to a prior final felony conviction and hearing more




      4
       The trial court admitted a document establishing that in 2006, a court
convicted appellant of assault against a member of his family or household.


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evidence and arguments concerning his punishment, 5 the jury assessed the

punishment at twenty years’ confinement. 6          The trial court sentenced him

accordingly. Appellant brought this appeal.

                                  Jury Instruction

      In his only issue, appellant contends that the trial court erred when it

granted the State’s request for a disjunctive jury instruction that was contrary to

the language of the indictment and that allowed the jury to reach a non-

unanimous verdict. Appellant’s indictment alleged that in October 2013 in Hood

County, appellant “did then and there intentionally, knowingly, or recklessly

cause bodily injury to [Monica] . . . by striking [her] on her head, wrist and leg with

said defendant’s hands and pulled [Monica’s] hair.” [Emphases added.] But the

jury charge on the issue of appellant’s guilt instructed the jury to find him guilty if

the jury determined “beyond a reasonable doubt that . . .           [he] intentionally,

knowingly or recklessly cause[d] bodily injury to [Monica] . . . by striking [her] on

her head, wrist or leg with [his] hands or pulled [her] hair.” [Emphases added.]




      5
       Monica testified again in the punishment phase of the trial, along with two
other witnesses.
      6
       When a defendant has been previously convicted of assault against a
member of the defendant’s family or household, a second conviction for that
offense is a third-degree felony. See Tex. Penal Code Ann. § 22.01(b)(2)(A).
Appellant, however, faced a second-degree-felony range of punishment—two to
twenty years’ confinement—because of his previous felony conviction. See id.
§ 12.33(a) (West 2011), § 12.42(a) (West Supp. 2014).


                                          4
      The trial court included the disjunctive “or” language in this jury instruction

as a result of the following exchange that occurred after the State rested its case

as to appellant’s guilt:

              [THE STATE]: Judge, I . . . just noticed one thing. It’s in the
      application paragraph, and that would be on page 2, and I guess my
      . . . thought or question is this. We . . . have to prove that . . . he
      caused bodily injury to [Monica] . . . by striking her if -- but I don’t
      think we have to prove all of those[.] I think there should be an “or”
      between those acts that were specific in the indictment . . . .

             ....

              [DEFENSE COUNSEL]: . . . I would recommend that [all of
      the acts, stated conjunctively, are] exactly what’s in the indictment,
      it’s what [the State has] alleged for the last 15 months . . . . That’s
      the . . . testimony they attempted to elicit not only from [Monica] but
      through Ms. Pritchett, the first person she contacted after these
      alleged incidents, and it should follow and track the indictment.

The trial court granted the State’s request to phrase the charged acts with the

disjunctive “or” language emphasized above.

      We consider all alleged jury-charge error 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.

The charge’s apparent inconsistency with the indictment

      Appellant first argues that the jury charge was erroneous because the

indictment charged the assaultive acts conjunctively while the jury charge stated

them disjunctively.    We cannot agree.      As the court of criminal appeals has

explained,


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      [A]lternate pleading of the differing methods of committing one
      offense may be charged in one indictment. And although the
      indictment may allege the differing methods of committing the
      offense in the conjunctive, it is proper for the jury to be charged in
      the disjunctive. It is appropriate where the alternate theories of
      committing the same offense are submitted to the jury in the
      disjunctive for the jury to return a general verdict if the evidence is
      sufficient to support a finding under any of the theories submitted.

Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App. 1991) (citations

omitted), cert. denied, 504 U.S. 958 (1992); see Zanghetti v. State, 618 S.W.2d

383, 386–88 (Tex. Crim. App. [Panel Op.] 1981) (holding that there was no error

when the indictment charged the methods of committing murder conjunctively but

the jury charge allowed the jury to convict the defendant if it found any of the

methods beyond a reasonable doubt); Hernandez v. State, Nos. 02-13-00196-

CR, 02-13-00197-CR, 2015 WL 4664840, at *3 (Tex. App.—Fort Worth Aug. 6,

2015, pet. filed) (explaining that although the State alleged in an indictment that

the defendant pointed a firearm at the victim and threatened to shoot the victim,

the jury charge “properly asked” the jury whether the defendant pointed the

firearm or threatened to shoot); Teamer v. State, 429 S.W.3d 164, 169 (Tex.

App.—Houston [14th Dist.] 2014, no pet.) (“The hypothetically correct charge

need not mirror all conjunctive language from the charging instrument.”); Wert v.

State, 383 S.W.3d 747, 755 (Tex. App.—Houston [14th Dist.] 2012, no pet.) (“It is

proper for the jury to be charged in the disjunctive even though the indictment . . .

may allege the differing methods of committing the offense in the conjunctive.”);

Rangel v. State, 199 S.W.3d 523, 540 (Tex. App.—Fort Worth 2006) (“If an



                                         6
indictment alleges different methods of committing the same offense in the

conjunctive (‘and’), it is not improper to submit the different methods to the jury in

the disjunctive (‘or’).”), pet. dism’d, 250 S.W.3d 96 (Tex. Crim. App. 2008).

      Based on the authority cited above, we cannot conclude, as appellant

contends, that the jury charge was erroneous because it was contrary to

language in the indictment. We overrule that part of appellant’s issue.

Jury unanimity

      Next, appellant contends that the jury charge allowed the jury to reach a

non-unanimous verdict. Texas law requires a unanimous verdict in all felony

cases. Tex. Code Crim. Proc. Ann. art. 36.29(a) (West Supp. 2014); Leza v.

State, 351 S.W.3d 344, 356 (Tex. Crim. App. 2011); Lozano v. State, 359 S.W.3d

790, 821 (Tex. App.—Fort Worth 2012, pet. ref’d). To discern what a jury must

be unanimous about, we apply basic grammar rules to the statute defining the

offense to determine whether the legislature created multiple, separate offenses,

or a single offense with different methods or means of commission. Pizzo v.

State, 235 S.W.3d 711, 714 (Tex. Crim. App. 2007); Davila v. State, 346 S.W.3d

587, 590 (Tex. App.—El Paso 2009, no pet.). “The unanimity requirement is not

violated when the jury has the option of choosing between alternative modes of

commission.” Pizzo, 235 S.W.3d at 715; see Young v. State, 341 S.W.3d 417,

422 (Tex. Crim. App. 2011); Lozano, 359 S.W.3d at 821. But when the State

charges different criminal acts, rather than alternative modes of committing the

same criminal act, “the jury must be instructed that it cannot return a guilty verdict


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unless it unanimously agrees upon the commission of any one of these criminal

acts.” Ngo v. State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005).

      Appellant contends that the charge allowed for a non-unanimous verdict

because some jurors “could have believed that [appellant] struck [Monica’s]

head, while others could have believed that he struck her wrist.               It’s not

necessarily true that they were unanimous on the same allegation.”

      Our sister intermediate appellate court considered the same argument in

Davila. 346 S.W.3d at 590–91. There, as here, the State charged the defendant

with committing assault against a member of his family or household. Id. at 589.

The jury charge instructed the jury to find the defendant guilty if it found that he

“intentionally, knowingly, or recklessly cause[d] bodily injury to [the victim] . . . by

pulling [her] hair with [his] hand, or by grabbing [the victim] about the neck with

[his] hand.” Id. at 591 (emphasis added). The court of appeals held that this

charge did not violate the requirement of jury unanimity, explaining,

      The essential elements required under this statute are (1) the
      defendant, (2) intentionally, knowingly[,] or recklessly, (3) causes
      bodily harm to a family member, including the defendant’s
      spouse. . . .

             ....

            . . . Appellant argues [that] part of the jury could have
      convicted him for pulling [the victim’s] hair, while other jurors could
      have convicted him for wrapping his hand around her neck. We
      disagree. Neither of the acts of pulling [the victim’s] hair nor
      grabbing her neck . . . constitute essential elements of the charged
      offense in accordance with the grammatical analysis described
      above. Rather the jury was merely given the opportunity to consider
      alternative means, or methods by which Appellant committed the


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       core of the offense[:] causing bodily harm to his wife. Therefore, the
       unanimity requirement was not violated by the charge . . . .

Id. (citation omitted); see also Agbor v. State, No. 02-12-00401-CR, 2013 WL

1830679, at *3 (Tex. App.—Fort Worth May 2, 2013, no pet.) (mem. op., not

designated for publication) (holding that jurors were not required to unanimously

agree on whether the defendant struck the victim with his hand, pulled her hair,

or pushed her because all of these facts were “manners and means by which

[the defendant] committed assault”); Marinos v. State, 186 S.W.3d 167, 175 (Tex.

App.—Austin 2006, pet. ref’d) (concluding, with respect to an aggravated assault

conviction, that it was “not necessary . . . for the court to require the jurors to

agree that appellant used a bag, or a piece of a bag, or his hand to inflict the

bodily injury”). 7

       We agree with the rationale and conclusion expressed in Davila and the

other cases cited above. Therefore, we hold that the jury charge in this case did

not allow for a non-unanimous verdict and that it was not erroneous.            We

overrule the remainder of appellant’s only issue.




       7
       The court of criminal appeals cited Marinos approvingly while stating that
the legislature has “evinced no intent that jurors need be unanimous about . . .
[the] manner in which the defendant caused the injury.” Landrian v. State, 268
S.W.3d 532, 538–39 & n.31 (Tex. Crim. App. 2008).


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                               Conclusion

      Having overruled appellant’s sole issue, we affirm the trial court’s

judgment.


                                             /s/ Terrie Livingston

                                             TERRIE LIVINGSTON
                                             CHIEF JUSTICE

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

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

DELIVERED: December 3, 2015




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