Affirmed and Memorandum Opinion filed August 20, 2019.




                                       In The

                     Fourteenth Court of Appeals

                               NO. 14-18-00369-CR
                               NO. 14-18-00370-CR



                        NATALIE FREEMAN, Appellant

                                         V.
                       THE STATE OF TEXAS, Appellee

                On Appeal from the County Court at Law No. 2
                             Bell County, Texas
               Trial Court Cause No. 2C16-04201 & 2C17-06288

                          MEMORANDUM OPINION

      A jury convicted appellant Natalie Freeman of assault causing bodily injury
to a member of her family or household. See Tex. Penal Code § 22.01(a)(1). The
same jury also convicted appellant of terroristic threat to a member of her family or
household. See id. at § 22.07(a)(2). Appellant argues on appeal that she suffered
egregious harm as a result of an incorrect definition of “intentional” in the abstract
portion of both jury charges. We overrule appellant’s issues because the Court of
Criminal Appeals has determined that an incorrect definition in the abstract portion
of a jury charge does not cause egregious harm when, as here, the application
paragraph correctly instructs the jury.

                                    BACKGROUND

      Appellant and Anthony Kendrick, the complainant, had a child as a result of
a brief romantic relationship. Appellant and Kendrick shared custody of the child
pursuant to a court order. According to Kendrick, appellant unexpectedly dropped
the child off at his house on a day she was supposed to have possession. Kendrick
agreed to take care of the child.

      The next morning, Kendrick had an early medical appointment. Kendrick
took the child to the store where appellant was working an overnight shift.
Kendrick parked his vehicle next to appellant’s and he waited there for appellant to
get off work. When appellant arrived at her vehicle, Kendrick exited his vehicle
and handed the child to appellant. A verbal confrontation occurred and appellant
struck Kendrick in the face. Appellant then pulled a box cutter out of her pocket
and threatened to cut Kendrick. Kendrick called 9-1-1. When police arrived on
the scene appellant admitted that she struck Kendrick first and that she
subsequently threatened him with a box cutter.

      At the conclusion of the evidentiary portion of appellant’s trial, the trial
court submitted two charges to the jury. The terroristic threat charge instructed the
jury as follows:

             A person commits the offense of terroristic threat if a person
      threatens to commit an offense involving violence to a person or
      property with intent to place a person in fear of imminent serious
      bodily injury and is committed against a member of the person’s
      family or household member. . . .

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            A person acts intentionally, or with intent, with respect to the
      nature of his or her conduct or as a result of this person’s conduct
      when it is his or her conscious objective or desire to engage in the
      conduct or cause the result.
             Now, bearing in mind the foregoing instructions, if you find
      from the evidence beyond a reasonable doubt, that on or about the
      13th day of May, 2016, A.D., in Bell County, Texas, the defendant,
      Natalie Louise Freeman, did then and there intentionally threaten to
      commit an offense involving violence to a family or household
      member namely, Anthony Kendrick, with intent to place said person
      in fear of imminent serious bodily, then you will find the defendant
      guilty of a misdemeanor as charged in the information. . . .
      The assault jury charge instructed the jury as follows:

            Our law provides that a person commits the offense of assault if
      the person intentionally, knowingly, or recklessly causes bodily injury
      to another, including the person’s spouse. . . .
             A person acts intentionally, or with intent, with respect to a
      result of his or her conduct when it is his or her 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 or her conduct when he or she is aware of the nature
      of his or her conduct or that the circumstances exist. A person acts
      knowingly or with knowledge, with respect to a result of his or her
      conduct when he or she is aware that his or her conduct is reasonably
      certain to cause the result. . . .
             Now, if you find from the evidence beyond a reasonable doubt
      that on or about the 13th day of May, 2016, in Bell County, Texas, the
      defendant, Natalie Louise Freeman, did then and there intentionally or
      knowingly or recklessly cause bodily injury to Anthony Kendrick, a
      family member or a household member of the Defendant’s, by
      striking him on or about the head or face or body, then you will find
      the defendant guilty of the offense of assault as charged in the
      information. . . .

      Appellant did not lodge any objections to either charge. The jury found
appellant guilty of both charges. The trial court subsequently sentenced appellant

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to serve 365 days in jail, probated for 18 months. This appeal followed.1

                                          ANALYSIS

       Appellant raises two issues on appeal. Appellant argues in her first issue
that the trial court erred when it instructed the jury on the culpable mental state
required to convict her of terroristic threat. Specifically, appellant contends that
“terroristic threat is a conduct-oriented offense” and the trial court erred because it
also included “result-oriented offenses” in the definition of “intentionally” in the
abstract portion of the terroristic threat charge.

       Appellant argues in her second issue that the trial court erred because it did
not properly instruct the jury regarding the culpable mental states for assault.
Here, appellant asserts that assault is a “result-oriented offense.” Appellant then
argues that the trial court’s jury charge was erroneous because it included in the
abstract portion of the charge “definitions of knowing conduct regarding conduct-
oriented and circumstances-oriented offenses.” In appellant’s view, she suffered
egregious harm as a result of both allegedly erroneous instructions. We address
these issues together.

       In a criminal case, we review complaints of jury charge error in two steps.
Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). First, we determine
whether error exists in the charge. Ngo v. State, 175 S.W.3d 738, 743–44 (Tex.
Crim. App. 2005). Second, we review the record to determine whether sufficient
harm was caused by the error to require reversal of the conviction. Id.

       1
          The Third Court of Appeals transferred the appeal to this court pursuant to an order of
the Texas Supreme Court. Under the Texas Rules of Appellate Procedure, “the court of appeals
to which the case is transferred must decide the case in accordance with the precedent of the
transferor court under principles of stare decisis if the transferee court’s decision otherwise
would have been inconsistent with the precedent of the transferor court.” Tex. R. App. P. 41.3.


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      The degree of harm necessary for reversal depends on whether the appellant
preserved the error by objecting to the charge. Almanza v. State, 686 S.W.2d 157,
171 (Tex. Crim. App. 1984) (op. on reh’g). When charge error is not preserved, as
in this case, reversal is not required unless the resulting harm is egregious. Id.; see
also Tex. Code Crim. Proc. art. 36.19.

      Charge error is egregiously harmful when it affects the very basis of the
case, deprives the defendant of a valuable right, or vitally affects a defensive
theory. Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). That is,
the error must have been so harmful that the defendant was effectively denied a
fair and impartial trial. Almanza, 686 S.W.2d at 172. Egregious harm is a difficult
standard to prove and must be determined on a case-by-case basis. Hutch v. State,
922 S.W.2d 166, 171 (Tex. Crim. App. 1996). Under Almanza, the record must
show that the charge error caused the defendant actual, rather than merely
theoretical, harm. Ngo, 175 S.W.3d at 750. Neither party has the burden to show
harm. Reeves v. State, 420 S.W.3d 812, 816 (Tex. Crim. App. 2013).

      The trial court’s charge must fully instruct the jury on the law applicable to
the case and apply that law to the facts adduced at trial. Gray v. State, 152 S.W.3d
125, 127 (Tex. Crim. App. 2004); see Tex. Code Crim. Proc. art. 36.14. “Because
the charge is the instrument by which the jury convicts, [it] must contain an
accurate statement of the law and must set out all the essential elements of the
offense.” Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995) (internal
citation omitted).    The application paragraph applies the relevant law, the
definitions found in the abstract portion of the charge, and general legal principles
to the particular facts of the case. Vasquez v. State, 389 S.W.3d 361, 366 (Tex.
Crim. App. 2012) (citing Gray, 152 S.W.3d at 127–28). Because the application
paragraph specifies “the factual circumstances under which the jury should convict

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or acquit, it is the ‘heart and soul’ of the jury charge.” Id. at 367 (quoting Gray,
152 S.W.3d at 128).          “It is not the function of the charge merely to avoid
misleading or confusing the jury: it is the function of the charge to lead and to
prevent confusion.” Reeves, 420 S.W.3d at 818 (internal quotation marks omitted).

       We will assume for purposes of this appeal that appellant is correct when she
asserts that terroristic threat is a conduct-oriented offense and that assault is a
result-oriented offense. We will also assume that the trial court erred when it
included additional definitions of the required culpable mental states in the abstract
portion of each charge. Appellant however, does not dispute that the application
paragraphs in both charges correctly tracked the statutory language for each
offense. In that situation, the Court of Criminal Appeals has determined that the
error in the abstract instruction does not cause egregious harm. 2 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

2
  Appellant attempts to distinguish Medina and Patrick by arguing that they do not control the
outcome in her appeal because they both involve murder, which, in appellant’s view, “is a simply
stated offense.” Appellant continues that the principle stated in Medina and Patrick does not
apply because “terroristic threat is a more complex offense involving numerous elements.”
Appellant does not, however, cite any authority for the proposition that an egregious harm
analysis is resolved by examining whether the elements of a criminal offense are “simple or
complex.” A jury charge “must contain an accurate statement of the law and must set out the
essential elements of the offense.” Dinkins, 894 S.W.2d at 339. The Court of Criminal Appeals
has determined that if the application paragraph of a jury charge accurately states the law, then
any error in the statement of the law in the abstract portion of the charge does not cause
egregious harm. Medina, 7 S.W.3d at 640. The court did not limit the application of this
principle only to “simply stated offenses.” Because it did not, we must apply it here and overrule
appellant’s issues. See Gonzales v. State, 190 S.W.3d 125, 130 n.1 (Tex. App.—Houston [1st
Dist.] 2005, pet. ref’d) (stating that intermediate courts of appeal must follow the precedent of
the Texas Court of Criminal Appeals). To the extent that appellant in her two issues on appeal
invites this court to not follow the precedent of the Court of Criminal Appeals, we decline that
invitation. See id. If this precedent is to be changed, then that decision must be made by the
Court of Criminal Appeals. See State v. Delay, 208 S.W.3d 603, 605–07 (Tex. App.—Austin
2006), aff’d, 233 S.W.3d 870 (Tex. Crim. App. 2007).


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egregious.”); Patrick v. State, 906 S.W.2d 481, 493 (Tex. Crim. App. 1995) (“We
conclude that because the facts, as applied to the law in the application paragraph,
pointed the jury to the appropriate portion of the definitions, no harm resulted from
the court’s failure to limit the definitions of the culpable mental states to proving
the conduct element of the underlying offense.”); Kuhn v. State, 393 S.W.3d 519,
529 (Tex. App.—Austin 2013, pet. ref’d) (“In different contexts, Texas courts have
repeatedly held that where the application paragraph of the charge correctly
instructs the jury on the law applicable to the case, this mitigates against a finding
that any error in the abstract portion of the charge was egregious.”). Because
appellant has not shown that she suffered egregious harm as a result of the trial
court’s erroneous instructions, we overrule her issues on appeal.

                                   CONCLUSION

      Having overruled appellant’s issues on appeal, we affirm the trial court’s
judgments.




                                       /s/       Jerry Zimmerer
                                                 Justice



Panel consists of Justices Wise, Zimmerer, and Spain.
Do Not Publish — TEX. R. APP. P. 47.2(b).




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