AFFIRM; and Opinion Filed December 29, 2014.




                                        S   In The
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                     No. 05-13-01515-CR
                                     No. 05-13-01516-CR

                        SHEMONT JAYRON GULLATT, Appellant
                                       V.
                           THE STATE OF TEXAS, Appellee

                     On Appeal from the 363rd Judicial District Court
                                  Dallas County, Texas
                 Trial Court Cause Nos. F-11-61616-W and F-11-70820-W

                            MEMORANDUM OPINION
                        Before Justices O’Neill, Lang-Miers, and Brown
                                  Opinion by Justice O’Neill
       In case number 05-13-01515-CR, appellant Shemont Gullatt appeals his conviction for

aggravated robbery with a deadly weapon. In case number 05-13-01516-CR, he appeals his

conviction for continuous violence against the family. The background and facts of both cases

are well-known to the parties; thus, we do not recite them here. Because all dispositive issues

are settled in law, we issue this memorandum opinion. TEX. RS. APP. P. 47.2(a), 47.4.

                                 Appeal No. 05-13-01515-CR

       Appellant robbed George Yovonie, the operator of an ice cream truck, and shot him in

the course of the robbery. Yovonie is confined to a wheelchair as a result. A jury convicted

appellant of aggravated robbery with a deadly weapon and assessed punishment of 30 years’

imprisonment.   In three issues, appellant complains of error in the jury charge.       Because
appellant did not object to the charge at trial, we review his complaint to determine if any error

in the charge was “fundamental” and caused “egregious harm.” See Reeves v. State, 420 S.W.3d

812, 816 (Tex. Crim. App. 2013) (explaining applicable standards of review).

       In his first issue, appellant contends the trial court erred “by failing to limit the definitions

of intentionally and knowingly in the jury charge to the applicable conduct elements.” There are

three “conduct elements” which may be involved in an offense: (1) the nature of the conduct,

(2) the result of the conduct, and (3) the circumstances surrounding the conduct. Cook v. State,

884 S.W.2d 485, 487 (Tex. Crim. App. 1994). The culpable mental state definitions in the

charge must be tailored to the conduct elements of the offense. Id.

       Citing our opinion in Ash v. State, 930 S.W.2d 192, 195 (Tex. App.—Dallas 1996, no

pet.), appellant argues that even though all three conduct elements are involved in the offense of

aggravated robbery, the trial court must limit the definitions in the jury charge to the conduct

element of the offense to which they apply. He contends that the application paragraph of the

charge did not limit the culpable mental states to their relevant conduct elements; specifically,

that “[n]o instruction was given as to the circumstances surrounding Appellant’s conduct and

applied to the appropriation of property,” so that the jury had “no guidance on how to link the

culpable mental state to the act.” The application paragraph of the charge provided:

               Now bearing in mind the foregoing instructions, if you believe
               from the evidence beyond a reasonable doubt that the defendant,
               Shemont Jayron Gullatt, either acting alone or as a party with
               Samuel Davis, on or about the 30th day of October, A.D., 2011, in
               the County of Dallas, and State of Texas, as alleged in the
               indictment, did then and there intentionally or knowingly, while in
               the course of committing theft of property and with intent to obtain
               or maintain control of said property, cause bodily injury to another,
               George Yovonie, hereinafter called complainant, by shooting
               complainant with a firearm, and the defendant, either acting alone
               or as a party with Samuel Davis, did then and there use or exhibit a
               deadly weapon, to-wit: a firearm, then you will find the defendant
               guilty of the offense of Aggravated Robbery with a Deadly
               Weapon and so say by your verdict.
                                                 –2–
The State contends the mental states “intentionally or knowingly” directly modify the phrase

“cause bodily injury,” and thus refer to the result of this conduct. See Ash, 930 S.W.2d at 195

(“To prove robbery, the State is required to prove that appellant ‘caused bodily injury’; this

refers to a result of the conduct.”). The State also argues that the paragraph asks whether

appellant acted “with intent to obtain or maintain control” of property, and thus refers to the

nature of appellant’s conduct. See id. (reference to “unlawful appropriation” refers to nature of

conduct).

       In Ash, we concluded the jury charge was erroneous, but further concluded that the error

was harmless. Id. As here, the appellant failed to object to the jury charge. Id. We examined

the charge to determine if the defendant suffered “egregious harm.” Id. We considered (1) the

charge itself; (2) the state of the evidence including contested issues; (3) argument of counsel;

and (4) any other relevant information. Id. As the State points out, the application portion of the

charge tends to limit the culpable mental states to the applicable conduct element. See id.

Further, appellant’s counsel informed the jury both in voir dire and in closing argument that

appellant was guilty of the charge; he argued that the “real trial” was “with regards to the issue of

proper punishment.”     Out of the presence of the jury, before closing argument, appellant

confirmed his agreement with his counsel’s strategy of “not . . . contesting the issue of whether

or not you were guilty.” Therefore, any error in the charge did not result in egregious harm to

appellant. See id. We decide appellant’s first issue against him.

       In his second issue, appellant contends the trial court erred “by including reasonable

doubt in the jury charge.”     The instruction in question read:      “It is not required that the

prosecution prove guilt beyond all possible doubt; it is required that the prosecution’s proof

excludes all reasonable doubt concerning the defendant’s guilt.” We rejected this argument in

O’Canas v. State, 140 S.W.3d 695, 700–02 (Tex. App.—Dallas 2003, pet. ref’d). In O’Canas,

                                                –3–
we considered whether an identical instruction impermissibly defined “reasonable doubt” under

the court of criminal appeals’ opinion in Paulson v. State, 28 S.W.3d 570, 572 (Tex. Crim. App.

2000). We concluded that the instruction “simply states the legally correct proposition that the

prosecution’s burden is to establish proof beyond a reasonable doubt and not all possible doubt.”

O’Canas, 140 S.W.3d at 702. Therefore, the instruction did not define reasonable doubt and the

trial court did not err by including it in the jury charge. Id. We decline appellant’s invitation to

overrule O’Canas, and we decide his second issue against him.

          In his third issue, appellant argues the trial court erred by informing the jury about good

conduct time because he was ineligible for good conduct time. He further argues that even

though he failed to object, the “egregious harm” standard does not apply because the error was in

violation of the United States Constitution. In Luquis v. State, 72 S.W.3d 355, 368 (Tex. Crim.

App. 2002), the court examined these arguments at length and concluded there was no violation

of an appellant’s due process rights by instructing the jury in accordance with statute. See TEX.

CODE CRIM. PROC. ANN. art. 37.07, section 4(a) (West Supp. 2014) (required instruction

regarding parole and good conduct time). We decide appellant’s third issue against him.

                                    Appeal No. 05-13-01516-CR

          Appellant was charged with continuous violence against the family. He pleaded guilty.

The trial court deferred adjudication, sentenced him to three years’ probation, and imposed a

$2,000 fine. When the State later moved to revoke his probation, appellant pleaded true. The

trial court then sentenced him to 10 years’ confinement to run consecutively with his sentence in

the aggravated robbery case.       In a single issue, appellant contends the trial court lacked

jurisdiction to hear the case and render judgment because the case was not transferred to its

docket.




                                                 –4–
        The basis for appellant’s argument is that the indictment in his case was presented to

Dallas Criminal District Court Number Four; subsequently, the case appeared on the docket of

the 363rd Criminal District Court of Dallas County, which conducted the trial and rendered

judgment. No transfer order was executed. Because appellant did not file a formal plea to the

jurisdiction with the trial court, he failed to preserve this complaint for appeal. See Gates v.

State, No. 05-11-00404-CR, 2012 WL 753647, at *1 (Tex. App.—Dallas March 9, 2012, pet.

ref’d) (not designated for publication); Lemasurier v. State, 91 S.W.3d 897, 899–900 (Tex.

App.—Fort Worth 2002, pet. ref’d) (fact that no transfer order contained in record is procedural

matter, not jurisdictional; defendant who fails to file plea to jurisdiction waives complaint). We

decide appellant’s issue against him.

                                          CONCLUSION

        Having resolved appellant’s four issues in his two appeals, we affirm the judgments of

the trial courts.




                                                     /Michael J. O'Neill/
                                                     MICHAEL J. O’NEILL
                                                     JUSTICE



Do Not Publish
TEX. R. APP. P. 47

131515F.U05




                                               –5–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

SHEMONT JAYRON GULLATT,                             On Appeal from the 363rd Judicial District
Appellant                                           Court, Dallas County, Texas
                                                    Trial Court Cause No. F-11-61616-W.
No. 05-13-01515-CR        V.                        Opinion delivered by Justice O’Neill,
                                                    Justices Lang-Miers and Brown
THE STATE OF TEXAS, Appellee                        participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered this 29th day of December, 2014.




                                             –6–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

SHEMONT JAYRON GULLATT,                             On Appeal from the 363rd Judicial District
Appellant                                           Court, Dallas County, Texas
                                                    Trial Court Cause No. F-11-70820-W.
No. 05-13-01516-CR        V.                        Opinion delivered by Justice O’Neill,
                                                    Justices Lang-Miers and Brown
THE STATE OF TEXAS, Appellee                        participating.


       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.



Judgment entered this 29th day of December, 2014.




                                             –7–
