                        COURT OF APPEALS
                         SECOND DISTRICT OF TEXAS
                              FORT WORTH

                             NO. 02-12-00091-CR


JAMES DANIEL HARRIS                                                APPELLANT

                                       V.

THE STATE OF TEXAS                                                      STATE


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          FROM THE 89TH DISTRICT COURT OF WICHITA COUNTY

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                        MEMORANDUM OPINION 1

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      Appellant James Daniel Harris was found guilty of possession of more than

4 but less than 200 grams of methamphetamine.           The jury assessed his

punishment at confinement for life with a $10,000 fine.      In his sole point,

Appellant argues that the trial court erred by charging the jury in the abstract

portion of the charge that possession of a controlled substance is a result-of-



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      See Tex. R. App. P. 47.4.
conduct offense when, in fact, it is solely a nature-of-conduct or circumstances-

surrounding-the-conduct offense. We affirm.

                                I. BACKGROUND

      On September 8, 2009, Officer Gerald Schulte executed a search warrant

at Harris’s residence. During the search, Schulte and other officers found more

than eighteen grams of methamphetamine. In an interview conducted at the

scene, Harris confessed to ownership of the methamphetamine, stating “all the

dope in the house is mine. . . . That’s what I do.” Officers also found several

items in the house that indicated Harris intended to distribute methamphetamine.

A grand jury indicted Harris for intentionally and knowingly possessing, with the

intent to deliver, more than 4 but less than 200 grams of methamphetamine. See

Tex. Health & Safety Code Ann. § 481.112 (West 2010).

      The abstract portion of the jury charge defined the applicable culpable

mental states:

              A person acts intentionally, or with intent, with respect to the
      nature of his conduct or to a 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. [Emphases
      added.]

The charge’s application paragraphs stated:



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             Now, bearing in mind the foregoing instructions, if you find
      from the evidence beyond a reasonable doubt that James Daniel
      Harris . . . did then and there intentionally or knowingly possess, with
      intent to deliver, a controlled substance . . . then you will find the
      defendant guilty of possession of [a] controlled substance with intent
      to deliver as alleged in the indictment.

            ....

            . . . Now, bearing in mind the foregoing instructions, if you find
      from the evidence beyond a reasonable doubt that James Daniel
      Harris . . . did then and there intentionally or knowingly possess a
      controlled substance, . . . then you will find the defendant guilty of
      possession of [a] controlled substance as included in the indictment.

No objection was made to these definitions or instructions. Harris was convicted

of the lesser-included offense of possession of more than 4 but less than 200

grams of methamphetamine. See Tex. Health & Safety Code Ann. § 481.115

(West 2010). Harris then appealed.

      Harris’s appointed appellate counsel filed a motion to withdraw

accompanied by a brief in compliance with Anders v. California, 386 U.S. 738, 87

S. Ct. 1396 (1967). On May 30, 2013, we granted counsel’s motion to withdraw

and remanded the appeal to the trial court for appointment of new counsel based

on the presence of arguable issues. Thereafter, Harris’s new appellate counsel

argued that the allegedly erroneous jury charge caused him egregious harm.

                                II. DISCUSSION

                   A. INACCURACIES IN THE REPORTER’S RECORD

      As noted above, Appellant’s first appointed appellate attorney concluded

that there were no arguable issues arising from Appellant’s conviction. After



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counsel filed an Anders brief and was allowed to withdraw, Appellant began filing

documents in this court pro se.       We construed some of these filings to be

complaints to the accuracy of the reporter’s record and the exclusion of an exhibit

referred to at trial. We abated the appeal and ordered the trial court to conduct a

hearing to determine whether the reporter’s record was complete. See Tex. R.

App. P. 34.6(e)(3). The trial court did so and found that (1) “the reporter’s record

is accurate”; (2) “the visual aids utilized by the prosecutor during his punishment

argument were not offered into evidence; therefore, they are not part of the

appellate record”; and (3) “nor were the visual aids taken into the jury room

during deliberations.” Appellant then filed objections to the trial court’s findings in

this court.

       At the hearing, Appellant asserted that the prosecutor, during testimony by

some of the State’s witnesses, marked on a paper pad on an easel to “draw[] the

locale of what they viewed to be the scene of the meth lab.” The prosecutor

“clearly . . . marked with different colored markers showing location, direction,

position.” Appellant argued, therefore, that the reporter’s record was inaccurate

because the prosecutor’s drawing was not included as an exhibit.              But the

drawing was never offered as an exhibit and admitted into evidence. Indeed, the

trial court rechecked the exhibit box and discovered that no such drawing was

included.

       As required by rule 34.6(e)(3), we submitted Appellant’s dispute to the

reporter’s record to the trial court for “resolution.” Id. The trial court resolved the


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dispute and concluded that the record was not inaccurate.         Tex. R. App. P.

34.6(e)(2). We are not in a position to question the trial court’s findings. Indeed,

the rule provides that “the trial court must . . . settle the dispute.” Id. We are

satisfied that the trial court correctly reviewed and resolved Appellant’s complaint

under rule 34.6(e)(3). Thus, this dispute has been finally settled. See, e.g.,

Jaynes v. State, 216 S.W.3d 839, 843–44 (Tex. App.—Corpus Christi 2006, no

pet.); Borunda v. State, No. 05-00-00568-CR, 2001 WL 722151, at *3–4 (Tex.

App.—Dallas June 28, 2001, no pet.) (not designated for publication).

                                 B. JURY CHARGE

      We now turn to Appellant’s argument that the jury charge contained

egregious error based on the definitions of the applicable culpable mental states.

“[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. Pickens v. State, 165 S.W.3d 675, 680 (Tex. Crim.

App. 2005); 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 culpable mental states in the penal code encompass three possible

conduct elements that may be involved in an offense: nature of the conduct,


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result of the conduct, and 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 short, 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); 43 George E. Dix &

John M. Schmolesky, Texas Practice Series: Criminal Practice & Procedure

§ 43:8 (3d ed. 2011). Appellant alleges that the definitions of the applicable

culpable mental states—intentionally and knowingly—were erroneous because

they impermissibly indicated that possession of a controlled substance is result

oriented, as opposed to solely conduct oriented.

      Possession of a controlled substance has not been clearly categorized as

either result or conduct oriented. See Garcia v. State, 790 S.W.2d 22, 25 (Tex

App.—San Antonio 1990) (describing possession of marijuana as both conduct

and result oriented), appeal abated, 840 S.W.2d 957 (Tex. Crim. App. 1992);

Adams v. State, 744 S.W.2d 622, 628–29 (Tex. App.—Fort Worth 1987, pet.

ref’d) (recognizing possession of controlled substance not clearly classified as

either conduct or result oriented); see also Tex. Health & Safety Code Ann.

§ 481.115(a) (West 2010). When an offense is not neatly categorized as to the

appropriate mens rea, it is not error for the trial court to charge the jury on the


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complete statutory definitions of the applicable culpable mental states because

the statutory definitions allow the jury to consider either the result or the nature of

the defendant’s conduct.     See, e.g., Murray, 804 S.W.2d at 281; Saldivar v.

State, 783 S.W.2d 265, 268 (Tex. App.—Corpus Christi 1989, no pet.); Bosier v.

State, 771 S.W.2d 221, 225 (Tex. App.—Houston [1st Dist.] 1989, pet. ref’d).

Accordingly, the jury charge in this case, which allowed the jury to consider either

the nature or the result of Appellant’s conduct, was not erroneous.

      Even if the abstract portion of the jury charge contained error, however, we

would conclude that the error was not egregious.           Because the application

paragraphs correctly limited the culpable mental states as charged in the

indictment, any error in the abstract portion of the charge was not calculated to

injure Appellant’s rights or deprive him of a fair and impartial trial. Tex. Code

Crim. Proc. Ann. art. 36.19; 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). We overrule Appellant’s point.

                                 III. CONCLUSION

      Having overruled Appellant’s sole point, we affirm the trial court’s

judgment. See Tex. R. App. P. 43.2(a).



                                                     /s/ Lee Gabriel
                                                     LEE GABRIEL
                                                     JUSTICE


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PANEL: DAUPHINOT, GARDNER, and GABRIEL, JJ.

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

DELIVERED: April 10, 2014




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