             In the
        Court of Appeals
Second Appellate District of Texas
         at Fort Worth
     ___________________________

          No. 02-19-00024-CR
     ___________________________

    SKYLER CORY RUDD, Appellant

                    V.

         THE STATE OF TEXAS


On Appeal from County Criminal Court No. 2
           Tarrant County, Texas
         Trial Court No. 1504825


   Before Kerr, Birdwell, and Bassel, JJ.
  Memorandum Opinion by Justice Bassel
                          MEMORANDUM OPINION

                                   I. Introduction

      A jury convicted Appellant Skyler Cory Rudd of assault causing bodily injury of

a family member, interference with an emergency request for assistance, and unlawful

restraint. Tex. Penal Code Ann. §§ 20.02(a), 22.01(a)(1), 42.062. The State and Rudd

agreed to a 365-day jail sentence, probated for twenty months, and the trial court

sentenced him accordingly. In two points, Rudd complains of jury-charge error.

Because the jury-charge error did not egregiously harm Rudd, we affirm the trial

court’s judgments.

                              II. Standard of Review 1

      We must review “all alleged jury-charge error . . . regardless of preservation in

the trial court.” Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In

reviewing a jury charge, we first determine whether error occurred; if not, our analysis

ends. Id.

      Unpreserved charge error warrants reversal only when the error resulted in

egregious harm. Nava v. State, 415 S.W.3d 289, 298 (Tex. Crim. App. 2013); 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. The appropriate inquiry for egregious harm is fact- and


      1
        Rudd does not challenge the sufficiency of the evidence. We therefore omit
an initial statement of facts.



                                           2
case-specific. Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v.

State, 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).

      In making an egregious harm determination, we must consider “the actual

degree of harm . . . in light of the entire jury charge, the state of the evidence,

including the contested issues and weight of probative evidence, the argument of

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

whole.” Almanza, 686 S.W.2d at 171. See generally Gelinas, 398 S.W.3d at 708–

10 (applying Almanza). Errors that result in egregious harm are those “that affect the

very basis of the case, deprive the defendant of a valuable right, vitally affect the

defensive theory, or make a case for conviction clearly and significantly more

persuasive.” Taylor, 332 S.W.3d at 490 (citing Almanza, 686 S.W.2d at 172). The

purpose of this review is to illuminate the actual, not just theoretical, harm to the

accused. Almanza, 686 S.W.2d at 174.

                III. Recklessness Absent from the Assault Count
                        but Included in the Jury Charge

      In his first point, Rudd contends that “the jury charge was fundamentally

defective” and that he was egregiously harmed because the jury charge allowed the

jury to convict him of reckless assault when reckless assault was not alleged in the

information. The State agrees that the jury charge erroneously included recklessness

as a culpable mental state for the count of assault despite its absence from the

information but argues that the error did not egregiously harm Rudd.          Section



                                          3
22.01 of the Texas Penal Code provides that “[a] person commits an offense if the

person . . . intentionally, knowingly, or recklessly causes bodily injury to another,

including the person’s spouse.” Tex. Penal Code Ann. § 22.01(a). Count One of the

information alleged that Rudd “intentionally or knowingly caused bodily injury to” his

then girlfriend “by grabbing her cell phone[,] . . . injuring her finger, or by grabbing

and restraining her with his arms.” Thus, the information omitted reckless assault.

The application paragraph in the jury charge provided,

               Now, if you find from the evidence beyond a reasonable doubt
       that . . . Rudd, in the County of Tarrant and State of Texas, on or about
       the 1st day of July, 2017, did then and there intentionally, knowingly or
       recklessly cause bodily injury to [the complainant], a member of [his]
       household or with whom [he] had a dating relationship, by grabbing her
       cell phone out of her hand thereby injuring her finger, or by grabbing
       and restraining her with his arms, then you will find [him] guilty as
       charged in Count One of the information.

             Unless you do so find beyond a reasonable doubt, or if you have a
       reasonable doubt thereof, you will acquit [Rudd] of Count One and say
       by your verdict not guilty.

[Emphasis added.] Thus, the jury charge allowed the jury to convict Rudd of reckless

assault.

                                A. Jury-Charge Error

       When the jury charge allows the jury to convict the defendant of an offense

different from the offense alleged in the charging instrument only because it involves

a lower culpable mental state than alleged in the indictment, and no lesser-included

offense instruction was requested or given, the jury charge is erroneous. Reed v. State,



                                           4
117 S.W.3d 260, 265 (Tex. Crim. App. 2003).            Thus, the trial court erred by

instructing the jury that it could convict Rudd of recklessly causing bodily injury to the

complainant when the information alleged only that he intentionally or knowingly did

so. See id.; cf. Limon v. State, No. 03-10-00666-CR, 2012 WL 5392160, at *2–3 (Tex.

App.—Austin Nov. 2, 2012, no pet.) (mem. op., not designated for publication) (in

misdemeanor case, holding trial court committed egregious harm by erroneously

instructing the jury it could convict defendant of reckless conduct when statute

required intentional or knowing conduct for a conviction).

                               B. No Egregious Harm

      Rudd did not object to the error, so the issue is whether the error caused

egregious harm. See Nava, 415 S.W.3d at 298; Almanza, 686 S.W.2d at 171. Again, in

determining egregious harm, we review the entire jury charge, the evidence and issues,

counsel’s arguments, and any other relevant portions of the record.             Almanza,

686 S.W.2d at 171.

                                      1. Voir Dire

      In the State’s voir dire, the prosecutor told the venire members:

      So now we’re going to talk about the very first charge, the very first
      count, and that’s assault family violence. So I want to talk to you about
      what it is we have to prove, right? That’s a good place to start.

              We have to prove that on or about a specific day, that the
      defendant, we’ve got to prove a person, in Tarrant County, Texas, we
      have to prove it happened here, intentionally, knowingly, or recklessly, and
      we’ll talk about that more in a second, caused bodily injury to a member
      of the defendant’s family or household.

                                            5
             ....

             So now I want to talk to you, I said that there are—we have to
      prove that the defendant acted intentionally, knowingly, or recklessly.
      And so intentionally and knowingly are very similar in the law.
      Intentionally means kind of what it sounds, when someone’s conscious
      intent to do something, that means that they acted intentionally. It can
      be inferred from what they did. We don’t have to hear that they said,
      I’m intentionally going to do this to you. Right? We can tell by what
      they did.

             And also, it can be formed in an instant. Right? So everyone on a
      different kind of case—we’re in misdemeanor court right now. But, you
      know, when it talks about a murder case, you know, that can be formed
      in an instant. Everybody wants to talk about was it premeditated or not.
      In that kind of trial we might have more discussion about why it can be
      formed in an instant. But I think that it can be somewhat self-
      explanatory.

             And knowingly is when a person acts with knowledge that what
      happened could happen. Right? And I know I’m getting some looks
      from y’all, and I get it, because intentionally and knowingly, what’s really
      the difference. And so I think the best way to describe it is an example.

[Emphasis added.] The prosecutor then continued to discuss and give examples of

the intentional and knowing mental states before explaining the reckless mental state:

              And then there’s recklessly. And this pretty much means exactly
      what you think it does. Let me go to you, Mr. B[.] Did you ever hear a
      kid, like, go out to the country and shoot cans off a fence?

             PROSPECTIVE JUROR: Sure. Yes.

             [PROSECUTOR]: So let’s say you go do this and you’re going to
      do this out by Possum Kingdom Lake. Let’s say in this scenario you’ve
      got some property out there. And you’ve got a fence keeping all the
      people from the lake, you know, from coming up and into your yard.
      Okay?

             So you have this great fence and it’s perfect for setting things on,
      right? Let’s say on the Fourth of July you’re like, you know, I haven’t

                                           6
      been shooting in a while. So you line some cans up. But there’s like
      wake boards and all kinds of people out on the lake. Do you think that
      would be a very good idea?

             PROSPECTIVE JUROR: No.

             [PROSECUTOR]: Why?

            PROSPECTIVE JUROR: Never shoot when you don’t know
      what’s behind you, to be honest.

            [PROSECUTOR]: I mean, one could shoot them, right? That
      would be a pretty reckless act, okay?

             PROSPECTIVE JUROR: Yes.

             [PROSECUTOR]: Right?

             PROSPECTIVE JUROR: Sure.

             [PROSECUTOR]: But even if there’s no ill intent whatsoever, I
      mean, it would be pretty reckless to be shooting at cans on a fence when
      there’s a bunch of people around.

             PROSPECTIVE JUROR: Yes.

             [PROSECUTOR]: So not a whole lot of explanation needed on
      this one.

[Emphasis added.] Thus, our review of the record indicates that the prosecutor spent

about as much time discussing recklessness as he spent discussing the intentional and

knowing mental states. Importantly, the prosecutor indicated in voir dire that the jury

could convict Rudd of reckless assault. We therefore conclude that the voir dire

weighs in favor of harm.            See Rodriguez v. State, No. 14-05-00750-CR,

2006 WL 2971252, at *4 (Tex. App.—Houston [14th Dist.] Oct. 19, 2006, pet. ref’d)

(mem. op., not designated for publication) (“In analyzing jury-charge error . . . , we


                                          7
review the entire trial record, from voir dire through closing arguments at the

punishment stage, to determine whether the appellant suffered ‘egregious harm’ from

the deficient jury charge.”).

                                2. The Entire Jury Charge

       In the abstract portion of the charge, the trial court defined intentionally,

knowingly, and recklessly. Recklessly was defined as follows:

              A person acts recklessly, or is reckless, with respect to circumstances
       surrounding his conduct when he is aware of but consciously disregards
       a substantial or unjustifiable risk that the circumstances exist. The risk
       must be of such a nature and degree that its disregard constitutes a gross
       deviation from the standard of care that an ordinary person would
       exercise under all the circumstances as viewed from the defendant’s
       standpoint.

[Emphasis added.]       Because assault causing bodily injury is a result-of-conduct

offense, Price v. State, 457 S.W.3d 437, 442–43 (Tex. Crim. App. 2015) (holding that

family-violence assault is a result-of-conduct offense); Garfias v. State, 424 S.W.3d 54,

60 (Tex. Crim. App. 2014) (“[A]n assaultive offense causing bodily injury is a result-

oriented offense.”), a circumstances-surrounding-the-conduct definition of recklessly

like that given in this case would have been error even if reckless assault had been

alleged in the complaint, see Price, 457 S.W.3d at 441. Knowingly was defined as follows:

              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.

[Emphasis added.] Again, because assault causing bodily injury is a result-of-conduct


                                              8
offense, only the last definition of knowingly listed, the result-of-conduct definition,

should have been included in the charge for this offense. See id.             The correct

definition of intentionally was given: “A person acts intentionally, or with intent, with

respect to a result of his conduct when it is his conscious objective or desire to cause the

result.” [Emphasis added.] See Tex. Penal Code Ann. § 6.03(a).

       The abstract charge instructed that a person commits assault if the person

intentionally, knowingly, or recklessly causes bodily injury to another, including his

spouse. While it is a true statement, the trial court erred by including reckless assault

in the abstract paragraph for this offense because it was not alleged in the

information. See Reed, 117 S.W.3d at 265.

       Thus, the entire charge on the assault offense allowed the jury to convict Rudd

of reckless assault despite the information’s alleging only intentional and knowing

assault. The charge as a whole therefore reduced the State’s burden of proof for the

assault count, and nothing in the charge diluted the error’s effects. This factor weighs

in favor of egregious harm. See Limon, 2012 WL 5392160, at *3. But cf. Medina v. State,

7 S.W.3d 633, 640 (Tex. Crim. App. 1999) (holding error in the abstract paragraph is

not egregious when the application paragraph is correct); Hughes v. State, 897 S.W.2d

285, 296 (Tex. Crim. App. 1994) (holding court “may consider the degree, if any, to

which the culpable mental states were limited by the application portions of the jury

charge”) (citation and internal quotation marks omitted).



                                             9
                            3. The State of the Evidence

      The information alleged that “on or about the lst day of July 2017,” Rudd

“intentionally or knowingly cause[d] bodily injury to [the complainant], a member of

[his] family or household or with whom [he] had a dating relationship, by grabbing her

cell phone out of her hand thereby injuring her finger, or by grabbing and restraining

her with his arms.” The defensive theory was that the complainant was lying about

Rudd’s various acts of misconduct in this case to win a custody battle over their child.

      The complainant testified that

      •      She and Rudd began a romantic relationship in 2013.
      •      The first time Rudd assaulted her was in September 2015, when she was
             nine months pregnant with their son.
      •      On that occasion Rudd grabbed her right arm, refused to let go, and
             tried to force her to sit on the couch.
      •      She threatened to call the police, and then Rudd threatened to break her
             phone.
      •      She did not call the police but let Rudd talk, and he let go of her and left
             after he talked.
      •      She filed a police report.
      •      She and Rudd reconciled after he was awarded joint custody of their son
             and after he scared her by threatening to “make [her] life a living hell and
             a nightmare” otherwise.
      •      Rudd regularly spoke to her that way.
      •      On November 5, 2016, after she did not promptly answer Rudd’s texts,
             he called her and “said that he was going to go shoot up the block and
             kill [their son, her, and himself] if [she] didn’t do what he said to do,”
             scaring her.


                                           10
•   Rudd threatened to kill their son, her, and himself several times, scaring
    her.
•   The complainant believed Rudd’s threats.
•   On July 1, 2017, Rudd and the complainant were still “[p]retty much” in
    a relationship.
•   Rudd became upset because the complainant’s male cousin was meeting
    with the complainant at her home to talk, and Rudd was not invited.
•   The complainant then told Rudd he could come to her home too, but he
    did not arrive until several hours after her cousin had left.
•   Rudd was angry and wanted to look at her text messages since her
    cousin had left, “line by line he said.”
•   She initially refused but then went to the living room to get her phone;
    their son was also in the living room.
•   She went back to the bedroom, where Rudd was.
•   She held the phone in her left hand and refused again to give it to him.
•   Rudd said, “[W]ell if you don’t give me the phone, I’m going to take it
    by force.”
•   He “tried to grab” the phone from her left hand.
•   “The case came open and . . . cut [her] finger.”
•   Rudd squeezed, grabbed, and “twisted [her] left index finger trying to
    get” the phone from her, leaving marks and swelling.
•   Rudd “had [her] in a restraint trying to get [the] phone.”
•   Her right wrist and hand were bruised and marked from her attempts to
    get away.
•   She escaped Rudd’s restraint and went to the kitchen.
•   He “grabbed [her] from behind” “as hard as he could,” hurting her
    sternum, impeding her breathing, causing her pain, and leaving a bruise
    on her right shoulder and a red mark on her sternum.


                                 11
      •      She told him he was hurting her and begged him to let her go.
      •      On July 2, Rudd came back to her apartment and “bandaged up [her] left
             index finger,” which “was messed up.”
      •      On July 3, the complainant saw a doctor, who documented her bruises.
      •      On July 5, the complainant reported Rudd’s conduct to the police.
      Officer Keith Chavis of the Benbrook Police Department testified that on July

5, he spoke to the complainant at her residence. He saw some bruising on her right

thumb and a cut on her left index finger. He testified that the injuries he saw matched

the injuries the complainant reported to him. He further testified that the injuries

looked worse when he saw the complainant than the photographs portrayed.2 He

also testified that he noted on the family violence packet diagram that the

complainant’s right shoulder and right upper chest were injured and that her oral

report to him and her written statement were consistent.

      The detective in charge of the investigation arrested Rudd.              Rudd’s

handwritten, sworn statement to the police provides, “I am not sure of any conflict

resulting in harm or injury to [the complainant] or [her] phone. I did not steal her

phone or make any hostile remark. I did not tell her she couldn’t do anything or try

to stop her from leaving.” The detective testified that “given the situation, you would

be sure whether or not this event actually took place.” The evidence detailed above


      2
       The photographs of the complainant’s injuries admitted at trial were taken
with a body camera.



                                          12
sufficiently proves Rudd intentionally or knowingly caused bodily injury to the

complainant.

                                 4. The Arguments

      The State did not emphasize the charged mental states or the assault in its

initial closing argument, and the defense focused on the complainant’s credibility and

challenging the depth of the police investigation, not on the charged mental states, in

its closing argument. In the State’s final closing argument, the prosecutor spoke of

the cycle of abuse; domestic violence; Rudd putting his “hands on” the complainant

repeatedly; and the angry, threatening texts that Rudd sent on the day he committed

the assault. The prosecutor summarized the evidence of Rudd’s behavior after he

arrived at the complainant’s home:

      [H]e demanded to see the phone, and when she said, no, I’m calling the
      police, he grabbed it from her. He literally committed two crimes in that
      one act. He kept her from calling 911 and he mangled her fingers so bad
      she dealt with the pain for days afterward. You heard about how that
      finger had to be bandaged up.

               ....

            Because that’s exactly what these victims of domestic violence do.
      They do whatever they can just to make the situation go away. He
      mangled her finger, he grabbed her from behind, and he assaulted her on
      her arm and on her chest as he grabbed her.

                                     5. Analysis

      Rudd contends that the complainant’s testimony that her cell phone case

separated from her phone when Rudd grabbed her, cutting and twisting her finger,



                                          13
and the prosecutor’s closing argument that Rudd assaulted the complainant by taking

her phone describe actions that are closer to reckless than intentional or knowing.

The State responds that after Rudd told the complainant he would take her phone by

force, he intentionally or knowingly injured her by twisting her finger to grab her

phone, and he also intentionally or knowingly injured her by restraining her with his

arms hard enough to hurt her sternum, impair her breathing, and bruise her wrists.

The State points out that when the jury charge contains alternative theories of

culpability, we measure the harm, at least in part, against the likelihood that the jury’s

verdict was based upon an alternative theory not affected by the error. Atkinson v.

State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996), overruled on other grounds by Motilla v.

State, 78 S.W.3d 352, 356–57 (Tex. Crim. App. 2002). No harm is shown where:

(1) the evidence clearly supports the defendant’s guilt under alternate theories

unaffected by the erroneous portion of the charge; (2) the State relies most heavily on

the alternate theories; and (3) it is very likely that the jury’s verdict was based on an

alternate theory. Rivera v. State, 12 S.W.3d 572, 577 (Tex. App.—San Antonio 2000,

no pet.).

       Here, the complainant suffered a cut when her phone case separated from her

phone as Rudd was assaulting her. At most, Rudd recklessly caused that cut. But

Rudd intentionally and knowingly caused the complainant’s remaining injuries—her

twisted left index finger, her bruised right hand and wrist, her bruised right shoulder,

and her sore sternum—by squeezing, grabbing, and twisting her left index finger; by

                                           14
restraining her by her right hand and wrist, causing bruises; and by grabbing her from

behind “as hard as he could,” hurting and marking her sternum and bruising her right

shoulder. Although the cut was discussed in testimony and the prosecutor mentioned

the bandaging of the complainant’s finger, the prosecutor emphasized the injuries

Rudd intentionally or knowingly caused and did not rely exclusively on the cut finger

to convict Rudd of the assault. Considering the entire record, we therefore hold the

jury-charge errors complained of regarding the assault did not cause egregious harm.

See, e.g., Sierra v. State, No. 04-01-00455-CR, 2003 WL 21782285, at *2 (Tex. App.—

San Antonio Aug. 1, 2003, no pet.) (mem. op., not designated for publication)

(supplementing original opinion after the filing of defendant’s petition for

discretionary review and holding any error harmless because “the State’s opening

statement and closing argument reflect[ed] that the State relied heavily on the theory

that Sierra committed aggravated assault by intentionally or knowingly causing bodily

injury to Ramirez” and it was “likely the jury found Sierra guilty of aggravated assault

because the evidence was compelling that he used a deadly weapon and intentionally

or knowingly caused bodily injury to Ramirez”). This is not a case where the errors

“affect[ed] the very basis of the case,” “depriv[ed] the defendant of a valuable right,”

or “vitally affect[ed] a defensive theory.” Cosio v. State, 353 S.W.3d 766, 777 (Tex.




                                          15
Crim. App. 2011) (citation and internal quotation marks omitted).            We overrule

Rudd’s first point and that part of his second point pertaining to the assault offense. 3

                  IV. Mental States Not Tailored to Each Count

      In his second point, Rudd contends that the jury charge was erroneous because

its definitions of mental states “were not tailored to each count according to [its]

respective conduct elements[,] nor did the charge otherwise indicate the proper

application of the mental state definitions to each count.”

      As the Texas Court of Criminal Appeals has explained,

              Section 6.03 of the Texas Penal Code sets out: four culpable
      mental states—intentionally, knowingly, recklessly, and criminally
      negligently; two possible conduct elements—nature of the conduct and
      result of the conduct; and the effect of the circumstances surrounding
      the conduct. In a jury charge, the language in regard to the culpable
      mental state must be tailored to the conduct elements of the offense.
      When “specific acts are criminalized because of their very nature, a
      culpable mental state must apply to committing the act itself.” McQueen
      v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). “On the other
      hand, unspecified conduct that is criminalized because of its result
      requires culpability as to that result.” Id. A trial court errs when it fails
      to limit the language in regard to the applicable culpable mental states to
      the appropriate conduct element. See Cook v. State, 884 S.W.2d 485,

      3
       Rudd indicates in a footnote that he urges his second point in the alternative
for the assault offense. Because we have already held that the trial court’s error of
including recklessly in the charge on assault did not result in egregious harm, because
we have already addressed the errors regarding the definition of knowingly in the
charge in terms of the assault, and because recklessly does not appear in the application
paragraphs for the remaining offenses, we confine our separate discussion of his
second point to the offenses of unlawful restraint and interference with an emergency
request for assistance and to the culpable mental states of intentionally and knowingly.
See Tex. R. App. 47.1.



                                            16
      491 (Tex. Crim. App. 1994) (“Intentional murder . . . is a ‘result of
      conduct’ offense, therefore, the trial judge erred in not limiting the
      culpable mental states to the result of appellant’s conduct.”).

             We use the gravamen of the offense to decide which conduct
      elements should be included in the culpable mental-state language. The
      gravamen of the offense is: the “gist; essence; [or the] substance” of the
      offense (Ballentine’s Law Dictionary 534 (3rd ed. 1969)); “[t]he substantial
      point or essence of a claim, grievance, or complaint” (Black’s Law
      Dictionary 817 (9th ed. 2009)); “the part of an accusation that weighs
      most heavily against the accused; the substantial part of a charge or
      accusation.” (Webster’s Encyclopedic Unabridged Dictionary of the English
      Language 617 (1989)).

Price, 457 S.W.3d at 441. To determine the gravamen, we first look at the language of

the statute. Stevenson v. State, 499 S.W.3d 842, 851 (Tex. Crim. App. 2016).

      The jury charge here contained the following definitions of mental states:

              A person acts intentionally, or with intent, with respect to a result of
      his conduct when it is his conscious objective or desire to 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.

[Emphasis added.]      Rudd specifically complains that knowingly was defined with

respect to all three conduct elements.

           A. Interference with an Emergency Request for Assistance

        1. Result-of-Conduct Definition of Knowingly Is Not Applicable

      For the offense of interference with an emergency request for assistance, Rudd

argues that the trial court erred by providing a definition of knowingly that included all



                                             17
three conduct elements instead of limiting the definition to the nature of the conduct.

Section 42.062(a) of the Texas Penal Code provides that

      [a]n individual commits an offense if the individual knowingly prevents
      or interferes with another individual’s ability to place an emergency call
      or to request assistance, including a request for assistance using an
      electronic communications device, in an emergency from a law
      enforcement agency, medical facility, or other agency or entity the
      primary purpose of which is to provide for the safety of individuals.

Tex. Penal Code Ann. § 42.062(a).        The indictment tracked the statute.       It is

undisputed that the trial court erred by including the result-of-conduct definition of

knowingly in the abstract portion of the jury charge as it pertains to this offense

because the result or product caused by Rudd’s conduct is not the statute’s focus. See

Young v. State, 341 S.W.3d 417, 423–24 (Tex. Crim. App. 2011) (discussing the three

categories of offenses). The parties agree that this offense is a nature-of-conduct

offense because the focus is on a defendant’s specific actions, not results. See id. at

424. However, our sister court in Amarillo has held otherwise:

      The only culpable mental state for the offense of interference with an
      emergency request for assistance is “knowingly.” Tex. Penal Code Ann.
      § 42.062(a) (providing that an individual commits the offense “if the
      individual knowingly prevents or interferes with another individual’s
      ability to place an emergency call or to request assistance . . . ”)
      (emphasis added).      Therefore, the offense of interference with
      emergency request for assistance is a “circumstances-of-conduct”
      offense because it is not the interference with just any call that is
      prohibited, it is the circumstance of the call being to an emergency
      assistance provider that makes the conduct fall within the purview of
      that statute.




                                          18
Alcoser v. State, No. 07-18-00032-CR, 2019 WL 7044470, at *6 (Tex. App.—Amarillo

Dec. 20, 2019, no pet. h.). Because we hold below that on this record, any harm is

not egregious, see Almanza, 686 S.W.2d at 171, we need not decide whether this is a

nature-of-conduct offense, a circumstances-of-conduct offense, or both. See Tex. R.

App. P. 47.1.

                              2. No Egregious Harm

      Rudd contends that the error egregiously harmed him because it allowed the

jury to convict him under any of the three definitions of knowingly. The State argues

that the strength of the evidence shows that Rudd did not suffer any harm. To

reiterate, in assessing harm in this case, we examine “the entire jury charge, the state

of the evidence, including the contested issues and weight of probative evidence, the

argument of counsel and any other relevant information revealed by the record of the

trial as a whole.” Almanza, 686 S.W.2d at 171. In addition to the definitions of

knowingly discussed above, the jury charge provided the following abstract and

application paragraphs for this offense:

              Our law provides that a person commits the offense of interfering
      with an emergency call if he knowingly prevents or interferes with another
      individual’s ability to place an emergency telephone call; knowingly
      prevents or interferes with another individual’s ability to request
      assistance in an emergency from a law enforcement agency, medical
      facility or other agency or entity the primary purpose of which is to
      provide for the safety of individuals.

      ....




                                           19
               Now, if you find from the evidence beyond a reasonable doubt
      that . . . Rudd, in the County of Tarrant and State of Texas, on or about
      the 1st day of July, 2017, did knowingly prevent or interfere with the
      ability of [the complainant] to place an emergency call or to request
      assistance, including a request for assistance using an electronic
      communication device, in an emergency from a law enforcement agency;
      or medical facility, or other agency or entity the primary purpose of
      which is to provide for the safety of individuals, by grabbing her cell
      [phone] from her hand, then you will find the Defendant guilty as
      charged in Count Two of the information.

            Unless you do so find beyond a reasonable doubt, or if you have a
      reasonable doubt thereof, you will acquit the Defendant of Count Two
      and say by your verdict not guilty.

[Emphasis added.] We note that the application paragraph tracked the indictment and

the statute, and it did not apply the result-of-conduct definition of knowingly. See

Medina, 7 S.W.3d at 640; Morales v. State, 853 S.W.2d 583, 585 (Tex. Crim. App. 1993);

Wright v. State, No. 02-15-00399-CR, 2016 WL 6520189, at *4 (Tex. App.—Fort

Worth Nov. 3, 2016, no pet.) (mem. op., not designated for publication) (“When the

application paragraph of the charge correctly instructs the jury on the law applicable

to the case, this mitigates against” finding egregious harm.).

      If this is not a multiple-gravamen offense, the other Almanza factors confirm

that Rudd suffered no egregious harm whether the nature-of-conduct or the

circumstances-of-conduct definition of knowingly applies. See Almanza, 686 S.W.2d at

171. In voir dire, the prosecutor stated: “If you prevent or interfere with someone

calling 911 or calling for emergency assistance in whatever way that that might be, that

is a crime.” She did not attribute a mental state to the offense. In the State’s opening



                                           20
statement, the prosecutor stated that the witnesses would tell the jury that Rudd

prevented the complainant from calling 911; again, the mental state was not

mentioned. In the State’s initial closing argument, the prosecutor stated, “And in here

you’re going to see what interference of an emergency call is. And it says, essentially,

prevent somebody from making an emergency call. She said at that moment I’m

calling 911 and what does he do, takes it. That’s your interference right there.” In the

State’s final closing argument, the prosecutor said, “[Rudd] showed up at the house,

demanded to see the phone, and when she said, no, I’m calling the police, he grabbed

it from her. He literally committed two crimes in that one act. He kept her from

calling 911 . . . .” Again, the prosecutor did not mention the mental state at all.

      Most significantly, the evidence showed both that Rudd knew the complainant

was trying to call 911 and that he knowingly stopped her; i.e., the evidence sufficiently

supported the verdict under either the nature-of-conduct or the circumstances-of-

conduct definition of knowingly given in the charge and did not improperly focus on

Rudd’s mental state regarding the results of his conduct. See Atkinson, 923 S.W.2d at

27; Rivera, 12 S.W.3d at 577. The complainant testified that Rudd wanted to examine

her phone’s text messages because he was upset that she had been alone with a male

cousin. She further testified:

      •      Rudd said, “[W]ell if you don’t give me the phone, I’m going to take it
             by force.”

      •      The complainant told him she was “going to go ahead and call 911.”


                                            21
       •       He said, “No,” and “tried to grab” the phone from her left hand.

       •       Rudd hurt her “left index finger trying to get” the phone from her.

       •       Rudd “had [her] in a restraint trying to get [her] phone” and eventually
               took the phone.
       Based on our assessment of the entire record, any error in including an

inappropriate definition of knowingly in the jury charge did not result in egregious

harm. See, e.g., Lewis v. State, No. 03-13-00275-CR, 2015 WL 1810389, at *6–7 (Tex.

App.—Austin Apr. 16, 2015, pet. ref’d) (mem. op., not designated for publication)

(holding no egregious harm because the application paragraph “properly applied the

law to the factual context” despite the omission of the correct definition of knowingly

from the abstract portion of the charge and the jury could have reasonably found the

defendant guilty under the correctly tailored theory of intentional murder, given the

evidence).

                                 B. Unlawful Restraint

           1. Only the Result-of-Conduct Definition of Knowingly Applies

       Section 20.02 of the Texas Penal Code provides that “[a] person commits an

offense if he intentionally or knowingly restrains another person.” Tex. Penal Code

Ann. § 20.02(a). The indictment alleged that Rudd “intentionally or knowingly by

force, intimidation, or deception restrain[ed the complainant] without her consent by

restricting [her] movements . . . .” “The use of the prepositional word ‘by’ in either a

statute or an indictment is a tip-off that . . . the phrase will be a description of how the



                                            22
offense was committed. But that phrase is not the gravamen of the offense . . . .”

Price, 457 S.W.3d at 443 (internal quotation marks omitted) (quoting Jefferson v. State,

189 S.W.3d 305, 315 (Tex. Crim. App. 2006) (Cochran, J., concurring)). As the parties

agree, unlawful restraint is a result-of-conduct offense. See Michael B. Charlton, Texas

Practice: Texas Criminal Law § 11.2 (2d ed.), Westlaw (database updated December

2019) (stating the “gravamen of [unlawful restraint] is restraint of the complainant

without his or her consent”); cf. Ashley v. State, 527 S.W.2d 302, 306 (Tex. Crim. App.

1975) (“The salient fact in a case of false imprisonment is the fact of restraint.”).

       Rudd argues that “the trial court erred by failing to specify which definition of

knowingly applied to the offense,” allowing the jury to convict him “based on the

application of the nature of conduct or circumstances definition of knowingly.” It is

undisputed that the trial court erred by including the nature-of-conduct and

circumstances-of-conduct definitions of knowingly in the abstract portion of the charge

for this result-of-conduct offense.      The State argues, however, that the correct

application charge and the overwhelming evidence of guilt negate any harm.

                                2. No Egregious Harm

       To assess egregious harm related to this offense, we apply the same egregious-

harm analysis employed for the other two offenses. See Almanza, 686 S.W.2d at 171.

In addition to the definitions of knowingly and intentionally discussed above, the jury

charge included the following abstract and application paragraphs for this offense:



                                            23
      Our law provides that a person commits the offense of unlawful
      restraint if he intentionally or knowingly restrains another person.

      ....

               Now, if you find from the evidence beyond a reasonable doubt
      that . . . Rudd, in the County of Tarrant and State of Texas, on or about
      the 1st day of July, 2017, did intentionally or knowingly by force,
      intimidation, or deception restrain [the complainant] without her consent
      by restricting [her] movements . . . then you will find the Defendant
      guilty as charged in Count Three of the information.

            Unless you do so find beyond a reasonable doubt, or if you have a
      reasonable doubt thereof, you will acquit the Defendant of Count Three
      and say by your verdict not guilty.

[Emphasis added.] The application paragraph tracked the indictment and the statute

and correctly applied the result-of-conduct definition of knowingly.        See Medina,

7 S.W.3d at 640; Morales, 853 S.W.2d at 585; Wright, 2016 WL 6520189, at *4.

      In voir dire, the prosecutor stated that the unlawful-restraint count alleged that

“on or about a certain date, the defendant, in Tarrant County, intentionally or

knowingly restrained another person.”         She used the term knowingly correctly,

modifying the result restrained. In the State’s opening statement, the prosecutor stated

that the witnesses would tell the jury that Rudd “unlawfully restrained [the

complainant] in her own home”; the mental state was not mentioned. In the State’s

initial closing argument, the prosecutor stated,

      And now that the assault is over, he’s not done with her yet. He’s
      looking through her phone, still exerting his power and control over her.

             But now he has her restrained in the laundry room. She’s up
      against the wall, can’t move. He’s exerting his power and control over
      her and won’t even let her leave the laundry room. She’s in there for

                                           24
      about from 30 minutes to an hour. She told you that on the stand. And
      that’s your unlawful restraint. He—it’s simple. He didn’t allow her to
      leave. And you can’t unlawfully restrain somebody that way.

Again, the prosecutor did not mention the mental state at all.

      Most significantly, the evidence showed that Rudd intentionally restrained the

complainant; i.e., the evidence sufficiently supported the verdict under an alternative

theory untouched by any error. See Lewis, 2015 WL 1810389, at *6–7; see also Atkinson,

923 S.W.2d at 27; Rivera, 12 S.W.3d at 577. The complainant testified:

      •      She finally freed herself after the assault and went through the bedroom
             and bathroom into the laundry room;
      •      Rudd followed her and blocked the laundry room’s doorway.
      •      She twice tried to get out by going through his legs; he pushed her back
             both times.
      •      She begged him to release her, but he refused to do so until they went
             “over the[] text messages.”
      •      For thirty minutes to an hour, he sat on a laundry basket of clothes
             reviewing her text messages and asking her whether she was cheating on
             him while she lay a foot away from him, “smashed up against the
             washer . . . in a curled-up position.”
      •      He released her from the laundry room after he finished reviewing her
             text messages.
      Based on our assessment of the entire record, any error in including the nature-

of-conduct and circumstances-of-conduct definitions of knowingly in the abstract

portion of the jury charge did not result in egregious harm regarding this offense. See

Atkinson, 923 S.W.2d at 27; see, e.g., Lewis, 2015 WL 1810389, at *6–7; Alexander v.

State, No. 05-99-01781-CR, 2000 WL 1683048, at *6–7 (Tex. App.—Dallas Nov. 10,


                                          25
2000, pet. dism’d, untimely filed) (holding even if including knowingly in the capital

murder charge was error, any harm was not egregious when the State’s evidence and

argument focused on intentional murder). We overrule the remainder of Rudd’s

second point.

                                  V. Conclusion

      Having overruled Rudd’s two points, we affirm the trial court’s judgments.




                                                    /s/ Dabney Bassel
                                                    Dabney Bassel
                                                    Justice

Do Not Publish
Tex. R. App. P. 47.2(b)

Delivered: February 27, 2020




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