                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-14-00268-CR

SAMMY LEE SMITH, JR.,
                                                            Appellant
v.

THE STATE OF TEXAS,
                                                            Appellee



                       From the County Court at Law No. 2
                            McLennan County, Texas
                          Trial Court No. 2014-0616-CR2


                          MEMORANDUM OPINION


      In three issues, appellant, Sammy Lee Smith Jr., challenges his conviction for

making a terroristic threat. See TEX. PENAL CODE ANN. § 22.07 (West 2011). Specifically,

appellant asserts that: (1) the trial court erroneously defined the term “intentionally” in

the jury charge; (2) the State engaged in purposeful discrimination in its exercise of a
peremptory challenge against a juror; and (3) the evidence supporting his conviction is

insufficient. Because we overrule all of appellant’s issues on appeal, we affirm.1

                               I.      APPELLANT’S BATSON CHALLENGE

          In his second issue, appellant argues that the trial court’s ruling on his Batson

challenge was clearly erroneous because the record demonstrates that the State’s race-

neutral explanation for exercising a peremptory strike on Juror Number 2 is inaccurate

and insufficient. See generally Batson v. Kentucky, 476 U.S. 79, 106 S. Ct. 1712, 90 L. Ed. 69

(1986).

A.        Applicable Law

          In Batson, the United States Supreme Court held that, while a prosecutor ordinarily

may exercise peremptory strikes for any reason related to his views concerning the

outcome of the trial, “the Equal Protection Clause forbids the prosecutor to challenge

potential jurors on account of their race.” 476 U.S. at 89, 106 S. Ct. at 1719. A Batson

challenge to a peremptory strike consists of three steps: (1) the opponent of the strike

must establish a prima facie showing of racial discrimination; (2) the proponent of the

strike must articulate a race-neutral explanation; and (3) the trial court must decide

whether the opponent has proved purposeful racial discrimination. See Purkett v. Elem,

514 U.S. 765, 767-68, 115 S. Ct. 1769, 1770-71, 131 L. Ed. 2d (1995); Young v. State, 283

S.W.3d 854, 866 (Tex. Crim. App. 2009).




          1As this is a memorandum opinion and the parties are familiar with the facts, we only recite those
facts that are necessary to the disposition of the case. See TEX. R. APP. P. 47.1, 47.4.

Smith v. State                                                                                       Page 2
        Once the State proffers race-neutral explanations for its peremptory strikes, the

burden is on the defendant to convince the trial court that the prosecution’s reasons were

not race-neutral. Ford v. State, 1 S.W.3d 691, 693 (Tex. Crim. App. 1999). Thus, the burden

of production shifts from the defendant in step one to the State in step two; but the burden

of persuasion never shifts from the defendant. Id. The trial court’s ruling in the third

step must be sustained on appeal unless it is clearly erroneous. Grant v. State, 325 S.W.3d

655, 657 (Tex. Crim. App. 2010) (citing Snyder v. Louisiana, 552 U.S. 472, 477, 128 S. Ct.

1203, 1207-08, 170 L. Ed. 2d 175 (2008)). “Because the trial court’s ruling requires an

evaluation of the credibility and demeanor of prosecutors and venire members, and

because this evaluation lies peculiarly within the trial court’s province, we defer to the

trial court in the absence of exceptional circumstances.” Id.; see Watkins v. State, 245

S.W.3d 444, 448 (Tex. Crim. App. 2008) (“[A] reviewing court should examine the trial

court’s conclusion that a facially race-neutral explanation for a peremptory challenge is

genuine, rather than a pretext, with great deference, reversing only when the conclusion

is, in the view of the record as a whole, clearly erroneous.”).

B.      Discussion

        At trial, appellant, an African-American, informed the trial court that the State had

struck the only two African-American jurors in the strike zone. See Godine v. State, 874

S.W.2d 197, 203 (Tex. App.—Houston [14th Dist.] 1994, no pet.) (stating that the

defendant made a prima facie showing of a Batson violation by showing that the juror

whom the State peremptorily struck was an African-American, like the defendant).

However, on appeal, appellant only complains about the trial court’s ruling on his Batson

Smith v. State                                                                         Page 3
challenge as to Juror Number 2. Nevertheless, appellant made a prima facie showing that

the prosecutor’s strike may have been racially motivated. See id.

        In response to appellant’s challenge, the State offered the following race-neutral

reason for striking Juror Number 2:

        Judge, I think it’s our obligation to give you, my understanding, race-
        neutral reasons as to why we struck these two individuals.

               With respect to Juror No. 2, I have a note that during [defense
        counsel’s] voir dire, he was sleeping. So I am concerned he would not be
        able to pay attention and fully focus on the trial.

Defense counsel argued: “With respect to Reverend Watson [Juror Number 2], I do not

recall that he slept at all during the voir dire. He was very alert and involved in the

process, and I disagree with their characterization.” The prosecution then asserted:

        Both Ms. Avery and I have independent notations that he was sleeping. I
        also have an initial notation, and I think it’s from Ms. Avery’s voir dire,
        where he couldn’t imagine a situation—it had to do with beyond a
        reasonable doubt and whether or not he would be—he could imagine a
        situation where he knew something 100 percent. It was early on in Ms.
        Avery’s voir dire. Again, after some cajoling and questioning, he was, I
        think, able to come around that he would understand that in that situation
        he would be a witness so he would be called to testify and not be called to
        judge.

              Generally speaking, it’s my concern, with him being a pastor, that
        he’s going to be more of a sympathetic person, more likely to give
        somebody a second chance. I think that his occupation plays a huge role
        into whether or not he could be [a] fair and impartial juror in this case.

Defense counsel responded that “those are not valid bases, and we reurge our objection.”

Thereafter, the trial court overruled appellant’s Batson challenge.

        Based on the foregoing, we do not believe that appellant refuted the prosecution’s

explanation or demonstrated that the State’s explanation was merely a pretext for

Smith v. State                                                                        Page 4
discrimination. See Williams v. State, 301 S.W.3d 675, 688 (Tex. Crim. App. 2009); Ford, 1

S.W.3d at 693. With respect to the prosecution’s assertion that Juror Number 2 was

sleeping during voir dire, we must give great deference to the trial court’s resolution of

this dispute because it was in the best position to evaluate the credibility and demeanor

of Juror Number 2, as well as the prosecutors and defense counsel. See Leadon v. State,

332 S.W.3d 600, 611 (Tex. App.—Houston [1st Dist.] 2010, no pet.) (“Appellate courts

must give great deference to credibility and demeanor determinations made by the trial

court in connection with a Batson inquiry. . . . We may not substitute our opinion for the

trial court’s factual assessment of the neutrality of the prosecutor’s explanation for

exercising strikes.” (citations omitted)); see also Grant, 325 S.W.3d 655, 657 (Tex. Crim.

App. 2010); Watkins v. State, 245 S.W.3d 444, 448 (Tex. Crim. App. 2008). Without more,

appellant’s disagreement with the State’s observation about Juror Number 2 sleeping is

not enough to demonstrate that the State’s explanation was merely a pretext for

discrimination. See Grant, 325 S.W.3d at 657; see also Watkins, 245 S.W.3d at 448.

        Furthermore, several Texas courts have held that a prospective juror sleeping

during voir dire is a sufficient race-neutral reason for the exercise of a peremptory strike.

See Tiede v. State, 104 S.W.3d 552, 559-60 (Tex. App.—Tyler 2000), vacated on other grounds,

76 S.W.3d 13 (Tex. Crim. App. 2002); Lamons v. State, 938 S.W.2d 774, 778 (Tex. App.—

Houston [14th Dist.] pet. ref’d) (holding that a prospective juror’s sleeping during

portions of voir dire was alone sufficient to justify a peremptory challenge); Irvine v. State,

857 S.W.2d 920, 926 (Tex. App.—Houston [1st Dist.] 1993, pet. ref’d); Ivatury v. State, 792

S.W.2d 845, 848 (Tex. App.—Dallas 1990, pet. ref’d) (“In the instant case, the State struck

Smith v. State                                                                           Page 5
juror 16 after it observed her dozing off and the court corroborated the State’s

observation. This was a sufficient racially neutrally [sic] explanation.”). Additionally,

the occupation of a venire member may serve as a race-neutral reason for the use of a

peremptory strike. See Leadon, 332 S.W.3d at 613 (noting that a strike based on a person’s

occupation is race-neutral) (citing Moore v. State, 265 S.W.3d 73, 78 (Tex. App.—Houston

[1st Dist.] 2008, no pet.) (holding that striking a postal worker on the basis of occupation

was race-neutral)); see also Godine, 874 S.W.2d at 205 (“Also, the occupation of a

venireperson is a legitimate race-neutral reason for striking a perspective [sic] juror.”

(citing Tompkins v. State, 774 S.W.2d 195, 205 (Tex. Crim. App. 1987); Barnes v. State, 855

S.W.2d 173, 174 (Tex. App.—Houston [14th Dist.] 1993, pet. ref’d))).

        Therefore, according great deference to the trial court’s denial of appellant’s Batson

challenge as to Juror Number 2, we cannot say that, based on our review of the record,

the trial court’s ruling is clearly erroneous. See Snyder, 552 U.S. at 477, 128 S. Ct. at 1207-

08; Grant, 325 S.W.3d at 657; Watkins, 245 S.W.3d at 448; see also Landrum v. State, No. 10-

13-00281-CR, 2014 Tex. App. LEXIS 10194, at *4 (Tex. App.—Waco Sept. 11, 2014, pet.

ref’d) (mem. op., not designated for publication). We overrule appellant’s second issue.

                               II.    EVIDENTIARY SUFFICIENCY

        In his third issue, appellant argues that the evidence supporting his conviction is

insufficient.




Smith v. State                                                                          Page 6
A.      Standard of Review

        In Lucio v. State, 351 S.W.3d 878, 894 (Tex. Crim. App. 2011), the Texas Court of

Criminal Appeals expressed our standard of review of a sufficiency issue as follows:

        In determining whether the evidence is legally sufficient to support a
        conviction, a reviewing court must consider all of the evidence in the light
        most favorable to the verdict and determine whether, based on that
        evidence and reasonable inferences therefrom, a rational fact finder could
        have found the essential elements of the crime beyond a reasonable doubt.
        Jackson v. Virginia, 443 U.S. 307, 318-19, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979);
        Hooper v. State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007). This “familiar
        standard gives full play to the responsibility of the trier of fact fairly 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. “Each fact need not point directly and independently to the guilt of
        the appellant, as long as the cumulative force of all the incriminating
        circumstances is sufficient to support the conviction.” Hooper, 214 S.W.3d
        at 13.

Id.

        Our review of "all of the evidence" includes evidence that was properly and

improperly admitted. Conner v. State, 67 S.W.3d 192, 197 (Tex. Crim. App. 2001). And if

the record supports conflicting inferences, we must presume that the factfinder resolved

the conflicts in favor of the prosecution and therefore defer to that determination. Jackson,

443 U.S. at 326, 99 S. Ct. at 2793. Furthermore, direct and circumstantial evidence are

treated equally:      “Circumstantial evidence is as probative as direct evidence in

establishing the guilt of an actor, and circumstantial evidence alone can be sufficient to

establish guilt.” Hooper, 214 S.W.3d at 13. Finally, it is well established that the factfinder

is entitled to judge the credibility of the witnesses and can choose to believe all, some, or




Smith v. State                                                                                Page 7
none of the testimony presented by the parties. Chambers v. State, 805 S.W.2d 459, 461

(Tex. Crim. App. 1991).

        The sufficiency of the evidence is measured by reference to the elements of the

offense as defined by a hypothetically correct jury charge for the case. Malik v. State, 953

S.W.2d 234, 240 (Tex. Crim. App. 1997). A hypothetically-correct jury charge does four

things: (1) accurately sets out the law; (2) is authorized by the indictment; (3) does not

unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s

theories of liability; and (4) adequately describes the particular offense for which the

defendant was tried. Id.

B.      Discussion

        A person commits the offense of terroristic threat if he threatens to commit an

offense involving violence to any person or property with intent to place that person in

fear of imminent serious bodily injury. See TEX. PENAL CODE ANN. § 22.07(a)(2). In Walker

v. State, the Fort Worth Court of Appeals stated:

        “Therefore, in order to commit this offense [terroristic threat], the accused
        must have the specific intent to place any person in fear of imminent serious
        bodily injury. . . . Intent can be inferred from the acts, words, and conduct
        of the accused. However, the accused’s intent cannot be determined merely
        from what the victim thought at the time of the offense. Indeed, for this
        offense to be complete it is not necessary that the victim or anyone else was
        actually placed in fear of imminent serious bodily injury. Additionally, it
        is immaterial to the offense whether the accused had the capability or the
        intention to carry out his threat. All that is necessary to complete the offense
        is that the accused by his threat sought as a desired reaction to place a
        person in fear of imminent serious bodily injury.”

327 S.W.3d 790, 794 (Tex. App.—Fort Worth 2010, no pet.) (quoting Dues v. State, 634

S.W.2d 304, 305-06 (Tex. Crim. App. 1982) (internal citations omitted)).

Smith v. State                                                                             Page 8
        Darrell Allen, the chief of police for Marlin, Texas, worked security for Club Crush,

an after-hours club in Waco, Texas, on the night in question. Chief Allen observed

appellant and another individual arguing with Randy Gober, the owner of the club. Chief

Allen testified that he told appellant and the other individual that they had to leave or go

inside the club. At this point, Chief Allen recalled that appellant told him to: “Get your

bitch-ass out of here. You’re no real cop, Nigger.” Chief Allen noted that appellant “kept

on in that type of language towards me” and that appellant was “very disrespectful, very

insolent, wouldn’t cooperate.” Chief Allen told appellant to leave approximately twelve

times, but appellant refused and got angrier.

        According to Chief Allen, appellant then “stated that he was going to find me on

Facebook and fuck me up. That he stated that he was a security guard and he had—he

was going to put his gun in my face” after being told to leave for the twelfth time. Upon

hearing a police siren, Chief Allen told appellant to get inside his car. Once inside,

appellant “still uttered remarks saying he was going to find me, going to fuck me up.”

Chief Allen also testified that he observed appellant make furtive gestures while inside

the car, “like he was looking for something” and that appellant’s passenger kept saying

he is from the hood and “Nigger, what’s up?”2 Chief Allen noted that he believed

appellant was looking for a gun while inside the car and that an act of violence causing

serious bodily injury was imminent. At this time, Chief Allen drew his service weapon,

told appellant to get out of the car, and informed appellant that he was under arrest. At




        2   A subsequent search of appellant’s vehicle found no firearms.

Smith v. State                                                                         Page 9
trial, Chief Allen could not recall appellant saying anything about “double-dipping,” but

he did correctly remember that appellant was driving a Sebring on the night in question.

        Sergeant Jason Lundquist of the Waco Police Department arrived at the scene to

see Chief Allen with his service weapon drawn. Sergeant Lundquist detained appellant

and checked him for weapons. No weapons were found, and appellant told Sergeant

Lundquist that “he didn’t think that they were police officers because they were just

working security for the club and they couldn’t do that.” After speaking with appellant,

Sergeant Lunquist turned appellant over to Officer Lyle Smith of the Waco Police

Department. Appellant told Officer Smith that he was told to leave but merely asked

why.

        Brandon Stanford, appellant’s cousin, testified that appellant never threatened to

pull a gun on Chief Allen and that he never threatened to look him up on Facebook.

Additionally, Trecienda Moore, appellant’s girlfriend, stated that she was in the car

behind appellant and that she only heard him say the word “dip.” Moore thought

appellant was saying something about “flipping and dipping.” Moore denied hearing

appellant threaten Chief Allen. Appellant also testified on his own behalf, wherein he

denied making any threat to Chief Allen and stating that he was a security guard.

        As noted earlier, it is within the province of the jury to resolve conflicts in the

evidence, and we are to defer to the jury’s resolution of those conflicts. See Chambers, 805

S.W.2d at 461; see also Jackson, 443 U.S. at 326, 99 S. Ct. at 2792-93; Lancon v. State, 253

S.W.3d 699, 706 (Tex. Crim. App. 2008); Render v. State, 316 S.W.3d 846, 859 (Tex. App.—

Dallas 2010, pet. ref’d) (“An appellate court must give deference to a jury’s decision

Smith v. State                                                                       Page 10
regarding what weight to give contradictory testimonial evidence because the decision is

most likely based on an evaluation of credibility and demeanor, which the jury is in a

better position to judge.”). In convicting appellant of the charged offense, the jury clearly

believed Chief Allen’s version of the events and did not believe appellant or his witnesses

regarding what transpired that evening; as such, we must defer to the jury’s resolution

of the conflict in the evidence.3 See Chambers, 805 S.W.2d at 461; see also Jackson, 443 U.S.

at 326, 99 S. Ct. at 2792-93; Lancon, 253 S.W.3d at 706; Render, 316 S.W.3d at 859.

        Viewing the evidence in the light most favorable to the verdict, we conclude that

a rational factfinder could have concluded that the State proved beyond a reasonable

doubt that appellant committed the offense of making a terroristic threat by threatening

violence with intent to place Chief Allen in fear of imminent serious bodily injury. See

TEX. PENAL CODE ANN. § 22.07; see also Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13.

We therefore hold that the evidence is sufficient to support appellant’s conviction. See

TEX. PENAL CODE ANN. § 22.07; see also Lucio, 351 S.W.3d at 894; Hooper, 214 S.W.3d at 13.

Accordingly, we overrule appellant’s third issue.




        3 Appellant also appears to argue that the evidence supporting his conviction is insufficient because
Chief Allen could not remember some of the details of the incident, and because Chief Allen’s employment
history (i.e., the fact that Chief Allen moonlighted as a security guard at Club Crush to earn more money)
supported the defensive theory that he overreacted when appellant made a disrespectful and sarcastic
remark about Chief Allen “double-dipping.” Appellant’s argument essentially attacks the credibility of
Chief Allen. Once again, we note that it is within the province of the jury to judge the credibility of the
witnesses and can choose to believe all, some, or none of the testimony presented by the parties. See
Chambers v. State, 805 S.W.2d 459, 461 (Tex. Crim. App. 1991). Furthermore, we are to defer to the jury’s
resolution of conflicts in the evidence. See id.; see also Lancon v. State, 253 S.W.3d 699, 706 (Tex. Crim. App.
2008); Render v. State, 316 S.W.3d 846, 859 (Tex. App.—Dallas 2010, pet. ref’d). As such, we are not
persuaded by appellant’s sufficiency argument.

Smith v. State                                                                                         Page 11
                                   III.    THE JURY CHARGE

        In his first issue, appellant asserts that the trial court erroneously included an

untailored definition of “intentionally” in the jury charge.          Specifically, appellant

contends that making a terroristic threat is a conduct-oriented offense and that the

definition of the term “intentionally” in the jury charge should be tailored to focus on the

nature of his conduct, rather than the result of his conduct.

A.      Applicable Law

        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).

B.      Discussion

        Here, the abstract portion of the jury charge pertaining to making a terroristic

threat provided the following definition for “intentionally”: “A person acts intentionally,

Smith v. State                                                                          Page 12
or with intent, with respect to the nature of his conduct or a result of his conduct when it

is his conscious objective or desire to engage in the conduct or cause the result.”

Appellant argues that this definition did not properly tailor the definition of

“intentionally” to focus on the nature of his conduct, rather than the result of his conduct.

        Under Almanza, the level of harm necessary for reversal depends on whether the

defendant timely and specifically objected to the jury charge. See Almanza, 686 S.W.2d at

171.    Because appellant properly objected in the trial court to the definition of

“intentionally” included in the jury charge, reversal is required if there was just “some

harm.” Id.

        To determine harm, we weigh the following factors: (1) the jury charge as a whole;

(2) the arguments of counsel; (3) the entirety of the evidence; and (4) any other relevant

factors present in the record. See Warner v. State, 245 S.W.3d 458, 461 (Tex. Crim. App.

2008). Even though the “some harm” standard is a low threshold, it nonetheless requires

the reviewing court to find actual harm, rather than just theoretical harm. Id. Neither

party bears the burden on appeal to prove harm or harmlessness. Id. at 462.

        1.       The Jury Charge as a Whole

        The application portion of the jury charge pertaining to making a terroristic threat

provided:

        Now, if you find from the evidence beyond a reasonable doubt that on or
        about June 16, 2013, in McLennan County, Texas, the Defendant, SAMMY
        LEE SMITH, JR., then and there threatened to commit an offense involving
        violence to a person, namely aggravated assault with a deadly weapon,
        with intent to place Darrell Allen in fear of imminent serious bodily injury,
        as charged in the Information, you will find the Defendant “Guilty.” Unless
        you so find beyond a reasonable doubt, or if you have a reasonable doubt

Smith v. State                                                                          Page 13
        thereof, you will acquit the Defendant and say by your verdict “Not
        Guilty.”

        The language contained in the application portion of the jury charge pertaining to

making a terroristic threat substantially tracks the language of section 22.07(a)(2) of the

Penal Code, which is the operative statute in this case., and effectively restricts the jury’s

deliberations to the allegations in the indictment. See TEX. PENAL CODE ANN. § 22.07(a)(2)

(“A person commits an offense if he threatens to commit any offense involving violence

to any person or property with intent to . . . place any person in fear of imminent serious

bodily injury . . . .”); 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 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); Grady v. State, 614 S.W.2d 830,

831 (Tex. Crim. App. 1981) (“[T]his Court held that abstract statements of the law that go

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

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

allegations in the indictment.”(citing Toler v. State, 546 S.W.2d 290, 293-94 (Tex. Crim.

App. 1977))); see also Riddle v. State, 888 S.W.2d 1, 8 (Tex. Crim. App. 1994) (“A jury charge

which tracks the language of a particular statute is a proper charge on a statutory issue.”).

Accordingly, we cannot say that this factor weighs in favor of finding “some harm.” See

Warner, 245 S.W.3d at 461. We now turn to the other factors to determine whether the

purported error might have prejudiced the jury’s consideration of the evidence or


Smith v. State                                                                           Page 14
substantially affected their deliberations. See Bagheri v. State, 119 S.W.3d 755, 763 (Tex.

Crim. App. 2003).

        2.       Closing Arguments

        Appellant’s main defensive theory was that he did not make a terroristic threat at

all. In fact, he did not contest the element of mental culpability at trial, though that is the

basis of his complaint in this issue. “Where no defense is presented which would directly

affect an assessment of mental culpability, there is no harm in submitting erroneous

definitions of ‘intentionally’ and ‘knowingly.’” Saldivar v. State, 783 S.W.2d 265, 268 (Tex.

App.—Corpus Christi 1989, no pet.) (citing Adams v. State, 744 S.W.2d 622, 628-29 (Tex.

App.—Fort Worth 1987, pet. ref’d); Mena v. State, 749 S.W.2d 639, 642 (Tex. App.—San

Antonio 1988, pet. ref’d)); see Reed v. State, 421 S.W.3d 24, 30 (Tex. App.—Waco 2013, pet.

ref’d). We therefore conclude that this factor does not weigh in favor of finding “some

harm.” See Warner, 245 S.W.3d at 461.

        3.       The Entirety of the Evidence

        As detailed earlier, the record contains ample evidence indicating that appellant

made a terroristic threat to Chief Allen. Moreover, we have concluded that the evidence

supporting appellant’s conviction is sufficient. As such, we cannot say that this factor

weighs in favor of finding “some harm.” See id.

        4.       Other Relevant Factors Present in the Record

        Other than repeating arguments made under the aforementioned factors of this

analysis, appellant does not direct us to any other compelling or relevant factors present



Smith v. State                                                                          Page 15
in the record. Once again, we cannot say that this factor weighs in favor of finding “some

harm.” See id.

        5.       Summary

        Based on the foregoing, we conclude that any error in defining the term

“intentionally” in the jury charge was harmless. See Almanza, 686 S.W.2d at 171. We

overrule appellant’s first issue.

                                    IV.    CONCLUSION

        Having overruled all of appellant’s issues 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 November 5, 2015
Do not publish
[CR25]




Smith v. State                                                                     Page 16
