Opinion filed April 26, 2012




                                           In The


   Eleventh Court of Appeals
                                         __________

                                   No. 11-10-00103-CR
                                       __________

                               TOMMIE SIMMONS, Appellant
                                          V.
                                STATE OF TEXAS, Appellee


                           On Appeal from the 411th District Court
                                  Trinity County, Texas
                                Trial Court Cause No. 9349


                               MEMORANDUM OPINION

       The jury convicted Tommie Simmons of aggravated assault with a deadly weapon. The
trial court sentenced him to confinement in the Institutional Division of the Texas Department of
Criminal Justice for a term of eighteen years. Appellant challenges his conviction in three
issues. We affirm.
                                       Background Facts
       Jarvis Tyson testified that appellant’s brother, Terrance “T.T.” Simmons, came to his
house on the morning of August 1, 2008. Tyson and T.T. subsequently traveled to T.T.’s house
located in an area that they described as “the North Side.” They shot dice at the house almost
every day. Tyson testified that he had been at the same house on the previous night. Upon
arriving at the house, Tyson and T.T. encountered appellant and T.T.’s other siblings. Tyson
testified that appellant appeared to be “tripping” because it appeared he had been using “dope.”
When appellant overheard a derogatory comment about his sister, he stated, “I’m going to get
my gun.” Tyson testified that appellant then returned with a gun and began saying, “I’ll shot
[sic] you,” repeatedly to Tyson. Appellant subsequently shot Tyson three times, including at
least one time in the abdomen. Afterwards, appellant told Tyson, “Die, hoe ass n----r.”
       Tyson fled the scene by running toward a nearby highway. An off-duty TDC prison
guard found him collapsed in the middle of the highway with blood coming from his abdomen.
The guard transported Tyson to the local hospital in the back of his pickup. Tyson testified that
he was subsequently “Life Flighted” to a Tyler hospital where he remained hospitalized for
twenty-four or twenty-five days. He further testified that he was unconscious for eighteen of
those days.
                                           Sufficiency of the Evidence
       Appellant challenges the legal and factual sufficiency of the evidence in his first issue.
We note at the outset of our analysis that the Texas Court of Criminal Appeals has now held in
Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), that there is “no meaningful distinction
between the Jackson v. Virginia1 legal-sufficiency standard and the Clewis2 factual-sufficiency
standard”; that the Jackson v. Virginia standard is the “only standard that a reviewing court
should apply in determining whether the evidence is sufficient to support each element of a
criminal offense that the State is required to prove beyond a reasonable doubt”; and that “[a]ll
other cases to the contrary, including Clewis, are overruled.” Brooks, 323 S.W.3d at 895, 902,
912 (footnotes added). Accordingly, a challenge to the factual sufficiency of the evidence is no
longer viable. We also note that appellant did not have the benefit of the opinion in Brooks when
this case was briefed. We will review appellant’s factual sufficiency challenge under the legal
sufficiency standard set forth in Jackson v. Virginia. Under this standard, we must review all of
the evidence in the light most favorable to the verdict and determine whether any rational trier of
fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v.
Virginia, 443 U.S. 307; Brooks, 323 S.W.3d at 899.
       In conducting a legal sufficiency review, we are required to defer to the jury’s role as the
sole judge of the credibility of the witnesses and the weight their testimony is to be afforded.

       1
        Jackson v. Virginia, 443 U.S. 307 (1979).
       2
        Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).

                                                           2
Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve conflicts
in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to
ultimate facts. Jackson v. Virginia, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex.
Crim. App. 2007).     When the record supports conflicting inferences, we presume that the
factfinder resolved the conflicts in favor of the prosecution and, therefore, defer to that
determination. Jackson v. Virginia, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. 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 v.
State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).
       Appellant bases his evidentiary challenge on a comment that Tyson made during cross-
examination wherein he stated that he did not believe appellant knew what he was doing because
appellant was on drugs at the time. Appellant contends that there is no evidence of the requisite
intent based on Tyson’s testimony that appellant did not know what he was doing. We disagree.
As noted previously, appellant made statements at the time of the shooting expressing his intent
to shoot Tyson.    Furthermore, appellant’s reliance on voluntary intoxication to negate the
element of intent is prohibited by TEX. PENAL CODE ANN. § 8.04(a) (West 2011). Voluntary
intoxication is not a defense to the commission of a crime, and evidence of an accused’s intoxi-
cation “does not negate the elements of intent or knowledge.” Hawkins v. State, 605 S.W.2d 586,
589 (Tex. Crim. App. 1980). Appellant’s first issue is overruled.
                                  Oral Comment by Trial Court
       Appellant directs his second and third issues at an oral comment made by the trial judge
at the conclusion of the reading of the charge of the court. The trial judge read the portion of the
charge preceding the verdict form in its entirety. When the trial judge reached the verdict form,
he stated: “And then the last page has three blanks and you will need to answer two of those.
And I’ll let the lawyers argue their respective positions about that.” The verdict form provided
as follows:
                                            VERDICT

              We, the Jury, find the Defendant, Tommie Simmons, guilty of the offense
       of Aggravated Assault with a Deadly Weapon as charged in the indictment.

                                                      ____________________________
                                                      Foreperson

                                                 3
              Do you find from the evidence beyond a reasonable doubt that the
       Defendant used or exhibited a deadly weapon, to-wit: a firearm, if he did during
       the commission of the offense alleged in the indictment?

               ANSWER: “We do” or “We do not”

               ANSWER: ___________________

                                                    ____________________________
                                                    Foreperson

                                               OR

                We, the Jury, find the Defendant, Tommie Simmons, not guilty.


                                                    _____________________________
                                                    Foreperson

Appellant directs his complaint to the trial judge’s comment that the jury would need to answer
two of the blanks. He alleges that this comment was erroneous because the jury would not need
to answer two of the blanks if it found appellant not guilty. He contends in his second issue that
this oral comment constituted an erroneous statement of the law, and he contends in his third
issue that it constituted an improper comment on the weight of the evidence.
       When an appellant alleges jury charge error on appeal, we first determine whether there
is any error in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If
we conclude there is jury charge error, we must determine if the error caused sufficient harm to
warrant reversal. Id. at 170–71. The extent of harm requiring reversal is dictated by whether the
error was properly preserved. Id. at 171. Appellant acknowledges on appeal that he did not
object to the trial judge’s comment at the time it was made. Where the defendant failed to object
to the error at trial, we may reverse only if the record shows that the error was so egregiously
harmful that the defendant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985).
       The State argues that the trial judge’s comment did not constitute error because the jury
could have answered two blanks on the verdict form and still found appellant not guilty. The
State premises this argument on the contention that the jury could have answered “[w]e do not”


                                                4
on the deadly weapon question, in addition to finding appellant not guilty. We disagree with the
State’s contention. As set forth above, the deadly weapon question was grouped together with
the “guilty” question. This fact is evidenced by the bold “OR” following the deadly weapon
question. The jury would have no reason to address the deadly weapon question if it found
appellant not guilty. Accordingly, the trial judge’s comment referencing the need to answer two
questions on the verdict form constituted a comment on the weight of the evidence because it
assumed the truth of a controverted issue. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App.
1986). In this regard, the jury would need to answer two questions on the verdict form only if it
found appellant guilty of the charged offense.
       Having found error, we must now determine if it resulted in egregious harm. Egregious
harm includes errors affecting the case’s foundation, denying the defendant a valuable right,
significantly affecting a defensive theory, or making the case for guilt or punishment clearly and
substantially more compelling. Hutch, 922 S.W.2d at 171. In determining the degree of harm,
we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any
other relevant information from the entire record. Taylor v. State, 332 S.W.3d 483, 489–90 (Tex.
Crim. App. 2011); Hutch, 922 S.W.2d at 171; Almanza, 686 S.W.2d at 171. 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; Hutch, 922 S.W.2d at 171; Almanza,
686 S.W.2d at 172.
       We first note the circumstances surrounding the oral comment. The trial judge made the
comment at the conclusion of the reading of the court’s charge essentially as an aside to the
reading of the court’s charge and the impending closing arguments to be given to the attorneys.
The comment was not so inflammatory as to provoke an objection by trial counsel or a reference
to it during closing argument. Furthermore, the written charge of the court contained the
following application provision:
               Now, bearing in mind the foregoing instructions, if you find from the
       evidence beyond a reasonable doubt that on or about the 1st day of August, 2008,
       in Trinity County, Texas, the defendant, TOMMIE SIMMONS, did then and there
       intentionally, knowingly or recklessly cause serious bodily injury to Jarvis Tyson
       by shooting him with a firearm, or the defendant did intentionally, knowingly, or
       recklessly cause bodily injury to Jarvis Tyson and did then and there use or
       exhibit a deadly weapon, to-wit: a firearm, during the commission of said assault,

                                                 5
       then you will find the defendant guilty of aggravated assault as charged in the
       indictment.

               If you do not so find, or if you have a reasonable doubt thereof, you will
       find the defendant “Not Guilty.”

Accordingly, the written instructions that accompanied the jury into its deliberations did not
contain the error presented by the trial judge’s oral comment.           The jury deliberated for
approximately twenty minutes without presenting any questions to the trial court about its
responsibilities. In light of the overwhelming weight of the evidence presented at trial and the
seemingly innocuous nature of the trial judge’s oral comment, we conclude that appellant did not
suffer egregious harm. We note in this regard that a timely objection and accompanying curative
instruction would have readily corrected the trial judge’s erroneous comment. See Ladd v. State,
3 S.W.3d 547, 567 (Tex. Crim. App. 1999). We conclude that the comment did not deprive
appellant of a fair and impartial trial. Appellant’s second and third issues are overruled.
                                        This Court’s Ruling
        The judgment of the trial court is affirmed.




                                                              TERRY McCALL
                                                              JUSTICE


April 26, 2012
Do not publish. See TEX. R. APP. P. 47.2(b).
Panel consists of: Wright, C.J.,
McCall, J., and Kalenak, J.




                                                 6
