                                IN THE
                        TENTH COURT OF APPEALS

                               No. 10-09-00386-CR

BRYAN DANIEL MOORE,
                                                         Appellant
v.

THE STATE OF TEXAS,
                                                         Appellee


                          From the 77th District Court
                           Limestone County, Texas
                           Trial Court No. 11873-A-1


                         MEMORANDUM OPINION


      Bryan Daniel Moore appeals from a conviction for the third degree felony offense

of assault with bodily injury-family member with a prior conviction for assault with

bodily injury-family member. TEX. PEN. CODE ANN. § 22.01(a)(1) & (b)(2)(A) (Vernon

Supp. 2009). Moore was sentenced by the trial court to imprisonment for six years in

the Texas Department of Criminal Justice – Institutional Division. Moore complains

that the trial court erred by submitting two special issues to the jury regarding two

prior convictions, and that the error constituted egregious harm. Because we find that
the erroneous submission of the special issues did not result in egregious harm to

Moore, we affirm the judgment of the trial court.

The Charge

       The charge as submitted to the jury in the guilt-innocence phase of the trial

required the jury to find that Moore had committed the offense of misdemeanor assault

with bodily injury-family member with no reference to prior convictions. Thereafter, in

the charge the jury was given two special issues which asked whether Moore had been

previously convicted of assault with bodily injury-family member beyond a reasonable

doubt. Moore did not object to the charge.

       Because there was no objection made to the charge by Moore, we must first

determine whether the charge as submitted to the jury was erroneous and if so, we

must analyze this complaint utilizing the standard of Almanza v. State. Allen v. State, 253

S.W.3d 260, 264 (Tex. Crim. App. 2008) (citing Olivas v. State, 202 S.W.3d 137, 143-44

(Tex. Crim. App. 2006), citing Almanza, 686 S.W.2d 157 (Tex. Crim. App. 1985)). Under

Almanza, unobjected-to jury charge error will not result in reversal of a conviction in the

absence of “egregious harm.” Almanza, 686 S.W.2d at 171.

       Article 37.07(1)(a) of the Code of Criminal Procedure requires that jury verdicts

are to be general. TEX. CODE CRIM. PROC. ANN. art. 37.07(a)(1) (Vernon Supp. 2009).

Moore contends that the submission of special issues is not allowed in criminal cases

and that the submission of the two special issues deprived him of the right to a general

verdict. See Harris v. State, 790 S.W.2d 568, 579 (Tex. Crim. App. 1989) (en banc) (other

than the “provisions in Article 37.071, Texas jurisprudence has no authority allowing

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the submission of special issues to a jury in a criminal case”); Stewart v. State, 686 S.W.2d

118, 124 (Tex. Crim. App. 1984) (en banc). However, in Harris, the Court of Criminal

Appeals stated that their finding that a refusal to submit a special issue was not

erroneous was not to be construed to say that “a special issue could never be

constitutionally necessary despite the statutory prohibition of Article 37.07(a).” Harris,

790 S.W.2d at 579-80. Indeed, special issues have been properly used in the guilt-

innocence phase of a jury trial for purposes of making an affirmative finding regarding

whether a deadly weapon was used in the commission of an offense. See Hill v. State,

913 S.W.2d 581, 584 (Tex. Crim. App. 1996) (en banc).

       The two special issues sought findings that were jurisdictional elements of the

offense of the third degree offense of assault with bodily injury on a family member.

See Edison v. State, 253 S.W.3d 303, 305 (Tex. App.—Beaumont 2008, no pet.). The State

argues that the use of the special issues protects the rights of the defendant by allowing

the jury to focus on the underlying offense prior to reaching the jurisdictional elements.

However, Article 37.07(a)’s language regarding general verdicts is mandatory, and we

do not find that the special issues as submitted were “constitutionally necessary despite

the statutory prohibition of Article 37.07(a).” Harris, 790 S.W.3d at 579-80. We find that

the submission of the special issues was erroneous.

Harm Analysis

       Having found error in the charge, we must next determine whether the error was

harmful.    It is undisputed that Moore did not object to the charge as submitted.



Moore v. State                                                                         Page 3
Pursuant to Almanza, unobjected-to jury charge error will not result in reversal of a

conviction in the absence of “egregious harm.” Almanza, 686 S.W.2d at 171.

       In examining the record for egregious harm, we consider: 1) the entire jury

charge, 2) the state of the evidence, including the contested issues and the weight of the

probative evidence, 3) the final arguments of the parties, and 4) any other relevant

information revealed by the record of the trial as a whole. Olivas v. State, 202 S.W.3d at

144. Jury charge error is egregiously harmful if it affects the very basis of the case,

deprives the defendant of a valuable right, or vitally affects a defensive theory. Stuhler

v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007); Sanchez v. State, 209 S.W.3d 117, 121

(Tex. Crim. App. 2006).

The Jury Charge

       The jury charge as a whole contains a definition of third degree assault with

bodily injury on a family member in Paragraph I of the main body of the charge that

includes the language that “the person has been previously convicted of an assault

against a member of the person’s family.” In the instructions in the second paragraph, a

definition of “previously convicted” is included.       Then the application paragraph

defines the offense of assault with bodily injury on a family member with no reference

to the prior conviction. No further reference is made to the prior conviction until the

bottom of the page of the general verdict form which contains the instruction “IF and

only if you find Bryan Daniel Moore Guilty of Family Assault answer Special Issue #1 &

2.” Each special issue begins with the statement that the jury had found Moore guilty of

assault, and then sought a finding beyond a reasonable doubt that Moore had

Moore v. State                                                                       Page 4
committed each of the prior offenses. There is little, if anything, in the body of the

charge to assist the jury with the special issues submitted to them. We find that the jury

charge, taken as a whole, does little to ameliorate the error.

State of the Evidence

        Moore does not contend that the evidence was legally or factually insufficient

regarding any element of the offense, including the prior convictions. The state of the

evidence is a factor that weighs in favor of the State.

Final Arguments

       The State argued in its closing argument that the primary focus of the jury was to

be on the assault with bodily injury and that the priors were separate. The State did

point out that the jury was required to find that Moore committed the prior offenses

beyond a reasonable doubt, but was only to consider those issues after they determined

whether Moore had committed the assault. Counsel for Moore argued to the jury that

they take the documents and review them and determine whether Moore was the

defendant as alleged and whether family violence was part of the offenses. We find

that the State’s argument did little to reduce the effect of the error; if anything, the

argument bolstered the charge as written requiring the findings as being separate from

their finding of guilt on the offense as alleged in the indictment.

Other Relevant Information

       The State contended that the prior convictions were not to be considered by the

jury in determining whether or not Moore committed the assault for which he was on

trial, beginning in voir dire and continuing throughout the trial. However, the prior

Moore v. State                                                                      Page 5
convictions are elements of the offense as alleged in the indictment. While the way the

State presented its case was not erroneous insofar as attempting to ensure that the jury

did not consider the priors in determining Moore’s guilt relating to the assault itself,

and might not have been improper had the charge been correctly presented, it

magnifies the error, which was denying Moore a general verdict on all of the elements

of the offense.

       The erroneous submission of the special issues relating to the jurisdictional

elements must have affected the very basis of Moore’s case, deprived Moore of a

valuable right, or vitally affected a defensive theory of Moore in order to constitute

egregious harm. Moore complains that the improper charge deprived him of the right

to have the jury find him guilty of all of the elements of the offense because the jury was

never required to make a general finding of guilt as to the third degree offense. Moore

also contends that because special issues are improper in criminal cases, egregious harm

is present because the use of the special issues invades the sanctity of the closed nature

of jury deliberations and might propel the jury to find him guilty whereas a general

verdict might not. While we agree that the submission of the jurisdictional elements

was erroneous, we do not find it to be automatically harmful or immune from a harm

analysis. The evidence was sufficient for the jury to have determined that Moore was

the individual that committed the prior offenses. Moore was not deprived of a jury

determination beyond a reasonable doubt that he committed those offenses. While we

certainly do not sanction the use of special issues as was done in this charge, we do not




Moore v. State                                                                       Page 6
find that the submission of the jurisdictional elements as special issues in this case rises

to the level of egregious harm. We overrule issue one.

Conclusion

       We find that the submission of the special issues was erroneous. We find that

the error did not constitute egregious harm. We affirm the judgment of the trial court.



                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Reyna, and
       Justice Davis
Affirmed
Opinion delivered and filed August 18, 2010
Do not publish
[CR25]




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