                                       IN THE
                               TENTH COURT OF APPEALS

                                       No. 10-14-00043-CR

BRENT LYNN CHRISTIAN,
                                                                        Appellant
v.

THE STATE OF TEXAS,
                                                                        Appellee



                                From the 220th District Court
                                   Bosque County, Texas
                                  Trial Court No. CR14779


                                MEMORANDUM OPINION


      In one issue, appellant, Brent Lynn Christian, challenges his conviction for

retaliation. See TEX. PENAL CODE ANN. § 36.06(a) (West 2011). Specifically, Christian

complains that the jury charge improperly defined the culpable mental states for

retaliation. We affirm.1




      1   In light of our disposition, we dismiss all pending motions as moot.
                                     I.     BACKGROUND

        In late December 2012, Helen Chappell approached her friend, Joshua Jones, and

said that she had friends that wanted to borrow Jones’s truck. Jones agreed to allow

Chappell’s friends to borrow his truck. On December 28, 2012, Officer James Austin

Luckie, formerly an investigator with the Hood County Sheriff’s Office, received “a

complaint from an individual who said he had some scrap metal stolen from his

property and he had some pictures or video footage of the suspects that committed the

theft.” After reviewing this footage, police were able to identify Jones’s truck as the

vehicle used in the theft. And thereafter, Christian and Michael Herrera, both friends of

Chappell, were identified as the individuals who borrowed Jones’s truck and the

perpetrators in the theft of the scrap metal.

        On December 30, 2012, Officer Jeff Hightower of the Bosque County Sheriff’s

Office received a complaint filed by Jones, wherein Jones alleged that he had been

assaulted by Christian and Herrera.       Specifically, Jones asserted that he had been

punched and choked by Christian and that Christian and Herrera demanded to know

what information Jones had told Luckie. According to Hightower, at the time of the

complaint, Jones had an abrasion on the left side of his head, near his temple; a small

cut on his eyelid; and his right eye was swollen.

        At trial, Jones recounted that Christian also “tackled me onto the bed, then

pushed my head against the bed and he started—he started saying what did you tell the

cops, what did you tell the cops.” Jones also testified that Christian threatened to kill

him. Fearful for his life, Jones told Christian that he had not said anything to police

Christian v. State                                                                 Page 2
about the scrap-metal theft. A few days later, Christian and Herrera confronted Jones

again. Jones stated that Christian and Herrera pinned Jones against the truck and said

“we’re going to find out what you did, we’re going to find out what you said, and we’re

going to, you know, take care of you.” And finally, Jones noted that:

        We was [sic] at a friend’s house—or I was at a friend’s house, and they
        [Christian and Herrera] had pulled up. They come [sic] in the living room
        and first—I can’t remember if it was Brent or Matthew [sic], one of them—
        one of them punched me in the face, then the other one punched me in the
        face. And Matthew [sic] grabbed me, acted like he was about to—said I
        am fixing to tie you up in the chair, I’m going to tie you up in the chair,
        tried to push the chair over towards me, fixing to get ready to tie me up.
        And my friend stopped him, you know, told him to stop.

        Christian was eventually arrested and charged by indictment with retaliating

against Jones, “a prospective witness or a person who had reported the occurrence of a

crime.” See id. Included in the indictment was an enhancement allegation referencing

Christian’s prior felony conviction for burglary of a habitation.

        At the conclusion of the evidence, the jury found Christian guilty of retaliation.

Christian pleaded “true” to the enhancement allegation contained in the indictment,

and the jury assessed punishment at twenty years’ incarceration in the Institutional

Division of the Texas Department of Criminal Justice with a $5,000 fine. Christian filed

a motion for new trial, which the trial court denied. This appeal followed.

                                   II.    THE JURY CHARGE

        In his sole issue, Christian argues that the trial court did not properly tailor the

instructions and definitions in the jury charge with regard to the culpable mental states.




Christian v. State                                                                    Page 3
Specifically, Christian contends that the trial court improperly included “nature of

conduct” instructions, even though retaliation is a “result of conduct” offense.

A.      Standard of Review

        In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was

properly preserved by objection, reversal will be necessary if the error is not harmless.

Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was

not preserved at trial by a proper objection, a reversal will be granted only if the error

presents egregious harm, meaning appellant did not receive a fair and impartial trial.

Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm

and not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim.

App. 2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

        Christian admits that he did not object to the jury charge; thus, he must show

egregious harm. See Almanza, 686, S.W.2d at 171. In examining the record for egregious

harm, we consider the entire jury charge, the state of the evidence, the final arguments

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

whole. Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Jury-charge error is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a

valuable right, or vitally affects a defensive theory. Stuhler v. State, 218 S.W.3d 706, 719

(Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

Christian v. State                                                                    Page 4
B.      Discussion

        The culpable mental states in the penal code encompass three possible conduct

elements that may be involved in an offense: (1) nature of the conduct; (2) result of the

conduct; and (3) circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03

(West 2011); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). In other

words, some crimes are defined in terms of result and some are defined in terms of

conduct or circumstances. When an offense is specifically delineated as to the type of

conduct, the trial court should limit the statutory definitions in the jury charge to the

culpable mental state required. Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App.

1994); Murray v. State, 804 S.W.2d 279, 281 (Tex. App.—Fort Worth 1991, pet. ref’d).

Appellant alleges that the definitions of the applicable culpable mental states—

intentionally and knowingly—were erroneous because they impermissibly indicated

that retaliation is nature-of-conduct oriented, as opposed to solely result oriented.

        Section 36.06(a)(1)(B) of the Texas Penal Code provides that:

        A person commits an offense if he intentionally or knowingly harms or
        threatens to harm another by an unlawful act . . . in retaliation for or on
        account of the service or status of another as a . . . person who has
        reported or who the actor knows intends to report the occurrence of a
        crime . . . .

TEX. PENAL CODE ANN. § 36.06(a)(1)(B). A central purpose of the retaliation statute is to

encourage a specified class of citizens to perform vital public duties without fear of

retribution. See Cada v. State, 334 S.W.3d 766, 771 (Tex. Crim. App. 2011); see also Doyle

v. State, 661 S.W.2d 726, 729 (Tex. Crim. App. 1983). Furthermore, Texas courts have

held that retaliation is a result-oriented offense. See Wilkins v. State, 279 S.W.3d 701, 704

Christian v. State                                                                      Page 5
(Tex. App.—Amarillo 2007, no pet.) (citing In re B.P.H., 83 S.W.3d 400, 407 (Tex. App.—

Fort Worth 2002, no pet.); Herrera v. State, 915 S.W.2d 94, 97 (Tex. App.—San Antonio

1996, no writ)).

        The indictment in this case alleged that Christian “did then and there

intentionally or knowingly harm . . . Joshua Jones, by an unlawful act, . . . assault, in

retaliation for or on account of the service of Joshua Jones as a prospective witness or a

person who had reported the occurrence of a crime.” With respect to the culpable

mental states, the abstract portion of the charge provided the following, in pertinent

part:

        A person acts intentionally, or with intent, with respect to the nature of his
        conduct or to the result of his conduct when it is his conscious objective or
        desire to engage in the conduct or cause the result.

               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.

        However, the application portion of the jury charge stated:

        Now, if you find from the evidence beyond a reasonable doubt that on or
        about December 29, 2012, in Bosque County, Texas, the defendant, Brent
        Lynn Christian, did intentionally or knowingly harm another, to-wit:
        Joshua Jones, by an unlawful act, to-wit: assault, in retaliation for or on
        account of the service of Joshua Jones as a prospective witness or a person
        who had reported the occurrence of a crime, then you will find the
        defendant guilty of the offense of retaliation as charged in the indictment.

“Intentionally or knowingly” in the application portion of the jury charge only applied

to the result of Christian’s conduct—the harm imposed on Jones.               The language


Christian v. State                                                                       Page 6
contained in the application portion of the charge did not apply to any other conduct or

the nature of the conduct and tracked the allegation made in the indictment.

        The Court of Criminal Appeals has held that “[w]here 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); see Plata v. State, 926 S.W.2d 300, 302-

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

(Tex. Crim. App. 1997) (holding that the inclusion of a merely superfluous abstraction

never produces reversible error in the court’s charge because it has no effect on the

jury’s ability to implement fairly and accurately the commands of the application

paragraph or paragraphs).             Abstract statements of the law that go beyond the

allegations in the indictment will not present reversible error when the trial court’s

application of the law to the facts effectively restricts the jury’s deliberation to the

allegations in the indictment. Grady v. State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981).

        Assuming, without deciding, that the abstract portion of the charge contained

error, we cannot conclude that the purported error was egregious because the

application paragraph correctly limited the culpable mental states as charged in the

indictment.2 See Medina, 7 S.W.3d at 640; Plata, 926 S.W.2d at 302-03; Grady, 614 S.W.2d

at 831; Herrera, 915 S.W.2d at 98; see also McGown v. State, No. 10-12-00092-CR, 2013 Tex.


        2  Moreover, in his brief, Christian admits that the “State’s evidence was fairly convincing, so this
factor likely weighs against a finding of egregious harm” and “[t]he argument of the parties did not focus
on culpable mental states, so the argument has little bearing on the harmfulness of the charge error.”
These statements are supported by the record. Therefore, considering the entire jury charge, the state of
the evidence, the final arguments of the parties, and any other relevant information revealed by the
record of the trial as a whole, we cannot say that the purported error in the jury charge egregiously
harmed Christian. See Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006).

Christian v. State                                                                                    Page 7
App. LEXIS 12115, at **17-20 (Tex. App.—Waco Sept. 26, 2013, pet. ref’d) (mem. op., not

designated for publication). As such, any error in the abstract portion of the charge was

not calculated to injure Christian’s rights or deprive him of a fair and impartial trial. See

Almanza, 686, S.W.2d at 171; see also Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at

121. Accordingly, we overrule Christian’s sole issue on appeal.

                                     III.   CONCLUSION

        Having overruled appellant’s sole issue on appeal, we affirm the judgment of the

trial court.




                                                  AL SCOGGINS
                                                  Justice


Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Affirmed
Opinion delivered and filed September 25, 2014
Do not publish
[CR25]




Christian v. State                                                                     Page 8
