                    In The
              Court of Appeals
Sixth Appellate District of Texas at Texarkana


                  No. 06-19-00054-CR



           ANDREW HAMILTON, Appellant

                           V.

           THE STATE OF TEXAS, Appellee



        On Appeal from the 202nd District Court
                 Bowie County, Texas
            Trial Court No. 17-F-1053-202




      Before Morriss, C.J., Burgess and Stevens, JJ.
       Memorandum Opinion by Justice Stevens
                                MEMORANDUM OPINION
       Andrew Hamilton (Hamilton) appeals his conviction for capital murder. A Bowie County

jury found Hamilton guilty of shooting his uncle Winfred Hamilton (Winfred) while committing

robbery. Hamilton was sentenced to life without parole. On appeal, Hamilton claims that (1) three

errors in the trial court’s charge to the jury egregiously harmed him and (2) there is insufficient

evidence to support the costs of court in the trial court’s judgment.

       Because we find that any error in the trial court’s charge did not result in egregious harm,

we overrule Hamilton’s first point of error. That said, we sustain Hamilton’s second point of error

and modify the trial court’s judgment to reflect the proper amount of court costs. As modified, we

affirm the trial court’s judgment.

I.     Background

       Winfred lived with his brother, Roland Hamilton (Roland), in Wake Village, a suburb of

Texarkana. At various times, Hamilton stayed with his uncles. On a Thursday night in September

2017, Roland came home from choir practice and found Winfred lying on the floor, as he often

did before going to bed. A blanket covered Winfred’s head. When Winfred did not rouse after

Roland spoke to him, Roland pulled the blanket away to see that Winfred had been shot in the

head. Roland also found that his safe had been moved and ransacked and that the Oldsmobile car

he let Winfred use was gone.

       Roland testified that he kept his watches, rings, coins, a .357 pistol, a .380 Cobra pistol,

and important papers in his safe. After the robbery, Roland discovered that the safe, which he




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normally stored in a closet in his house, was in his garage with a cover over it. The door to the

safe had been “busted,” and all the contents, except for the important papers, were gone.

        The State also called other witnesses who described seeing Hamilton on the night and day

following Winfred’s murder. These witnesses testified that Hamilton was in possession of a watch

and pistols matching the description of the items Roland said were his and that had been stored in

his safe.

        Hamilton was arrested the day after Winfred’s murder. He was located driving the

Oldsmobile car that Roland gave Winfred to use. Hamilton’s blood was also found on the door of

Roland’s safe.

        The indictment alleged that Hamilton caused the death of Winfred with a firearm and that

Hamilton “was then and there in the course of committing or attempting to commit the offense of

robbery of Winfred Hamilton.” The trial court’s charge, though, instructed that the jurors could

find Hamilton guilty of capital murder if they found, beyond reasonable doubt, that Hamilton

“intentionally cause[d] the death of . . . WINFRED HAMILTON, by shooting WINFRED

HAMILTON with a firearm, and [Hamilton], was then and there in the course of committing or

attempting to commit the offense of robbery . . . .” That is, the indictment alleged Hamilton killed

Winfred in the course of robbing him, while the charge only required a finding that Hamilton killed

Winfred while in the course of committing robbery without naming the victim of the robbery.

II.     Jury Charge Error

        In his first point of error, Hamilton claims three errors in the jury charge: (1) the offense

of theft was not adequately defined in the abstract paragraph, (2) the “application portion of the

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charge did not apply theft (and therefore robbery),” and (3) the application paragraph did not limit

the robbery to Winfred. These purported errors, according to Hamilton, caused him egregious

harm. 1

           A.       Standard of Review

           We employ a two-step process in our review of alleged jury charge error. See Abdnor v.

State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether error

occurred and then evaluate whether sufficient harm resulted from the error to require reversal.”

Wilson v. State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871

S.W.2d at 731–32).

           “[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the

court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13. “A trial court must

submit a charge setting forth the ‘law applicable to the case.’” Lee v. State, 415 S.W.3d 915, 917

(Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14). “The

purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its

application. 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 prevent confusion.” Id. (quoting Delgado v. State, 235

S.W.3d 244, 249 (Tex. Crim. App. 2007)).

           The level of harm necessary to require reversal due to jury charge error depends on whether

the appellant properly objected to the error. Abdnor, 871 S.W.2d at 732. Here, because Hamilton

did not object to the charge, we will not reverse unless the record shows the error resulted in


1
    See Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g).
                                                           4
egregious harm, see Ngo v. State, 175 S.W.3d 738, 743–44 (Tex. Crim. App. 2005) (citing

Almanza, 686 S.W.2d at 171), so that he did not receive a fair and impartial trial, see Almanza, 686

S.W.2d at 171; Loun v. State, 273 S.W.3d 406, 416 (Tex. App.—Texarkana 2008, no pet.).

         “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). In making this determination, we review “the entire

jury charge, the state of the evidence, the argument of counsel, and any other relevant information

in the record as a whole.” Villarreal v. State, 205 S.W.3d 103, 106 (Tex. App.—Texarkana 2006,

pet. dism’d, untimely filed) (citing Almanza, 686 S.W.2d at 171). Direct evidence of harm is not

required to establish egregious harm. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996).

         B.       Theft Was Adequately Defined in the Charge

         As for his first complaint, Hamilton concedes that the charge included a definition of theft.

As part of the abstract portion, the charge instructed,“‘Theft’ as used herein is the unlawful

appropriation of the corporeal personal property of another with the intent to deprive such person

of said property.” 2 Next, the charge instructed, “‘Appropriation’ and ‘appropriate,’ as those terms

are used herein, mean to acquire or otherwise exercise control over property other than real

property. Appropriation of property is unlawful if it is without the owner’s effective consent.”

Also included in the charge was the following: “‘Effective consent’ means assent in fact, whether


2
 Hamilton claims this definition of theft was not included in the “abstract portion of the charge.” A jury charge is
comprised of an application paragraph and abstract paragraphs. See Vasquez v. State, 389 S.W.3d 361, 366–67 (Tex.
Crim. App. 2012). “[A]bstract paragraphs serve as a glossary to help the jury understand the meaning of concepts and
terms used in the application paragraphs of the charge.” Crenshaw v. State, 378 S.W.3d 460, 466 (Tex. Crim. App.
2012). Thus, contrary to Hamilton’s argument, we find that the abstract portion of the trial court’s charge did include
a definition of theft.
                                                          5
express or apparent, and includes consent by a person legally authorized to act for the owner.

Consent is not effective if induced by deception or coercion or force or threats.”

         Hamilton does not explain what is deficient about the above definition of theft. Instead, he

suggests that the charge should have included the following definition: “A person commits the

offense of theft if he unlawfully appropriates property with intent to deprive the owner of the

property. Appropriation of property is unlawful if it is without the owner’s effective consent.”

We see no substantive difference between this language and the language in the trial court’s charge.

Both describe theft as unlawful appropriation of another’s property with the intent to deprive that

owner of the property, and both state that such appropriation is unlawful if done without the

effective consent of the owner.

         It is true that the Texas Code of Criminal Procedure requires the trial court to instruct the

jury on “the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14. Even so, “the

charge must also be tailored to the facts presented at trial.” Burnett v. State, 541 S.W.3d 77, 84

(Tex. Crim. App. 2017). 3 As an example, in Burnett, the trial court erred to include language

regarding intoxication due to ingestion of drugs as well as alcohol where the evidence only

supported a finding of intoxication by ingestion of alcohol. Id. at 84, 85.

         The trial court’s definition of theft included language from the Texas Penal Code. See TEX.

PENAL CODE ANN. § 31.03(e). That said, Section 31.03(e) lists many offenses that constitute theft

of varying levels. Offenses are categorized by the value of the property taken or the type of



3
The court in Burnett noted that it had “previously suggested that giving an entire statutory definition may be error
when only a portion of a statutory definition is relevant to the elements of the offense.” Burnett, 541 S.W.3d at 81.
                                                         6
property. For example, there are several offenses based on theft of various kinds of livestock, one

offense for taking property from a corpse or grave, and one for taking an official ballot.

         Here, theft was relevant to the charge and evidence only so far as it was a predicate to

robbery. One commits robbery by “committing theft . . . with intent to obtain or maintain control

of the property” and then “intentionally, knowingly or recklessly caus[ing] bodily injury to

another” or “intentionally or knowingly threaten[ing] or plac[ing] another in fear of imminent

bodily injury or death.” TEX. PENAL CODE ANN. § 29.02. The manner of theft is unimportant, and

the trial court need only define theft as described by the evidence at trial. Thus, “[t]he jury charge

in this case reflected the law as it applied to the evidence produced at trial.” Ouellette v. State, 353

S.W.3d 868, 870 (Tex. Crim. App. 2011). 4 For these reasons, there is no error in the definition of

theft in the jury charge. 5




4
 The jury charge in Ouellette included a definition of intoxication “by reason of the introduction of alcohol, a
controlled substance, a drug, a dangerous drug, or a combination of two or more of those substances into the body.”
Ouellette, 353 S.W.3d at 869. The evidence in that case included (1) the smell of alcohol on Ouellette’s breath;
(2) Soma, Darvocet, and a third type of pill found in the car; (3) Ouellette’s refusal to submit to a blood test, which
she at first offered to take to show she had not taken any of the pills in a month; and (4) testimony that Soma, as well
as alcohol, are central nervous system depressants. Id. at 869–70. In Burnett, pills were found that may have been
hydrocodone, but this was not proved definitively. There was no testimony that, even if the pills were hydrocodone,
such a drug operated as a central nervous system depressant. Burnett, 541 S.W.3d at 84–85. These circumstances
distinguished Burnett from Ouellette. Id.
5
 Hamilton’s second point of error claims that the application paragraph should have included the definition of theft as
an element of robbery. The Texas Court of Criminal Appeals “ha[s] consistently held that the allegation of the
constituent elements of the offense constituting the aggravating feature of a capital murder charge is unnecessary,
even in the face of a motion to quash.” Trevino v. State, 815 S.W.2d 592, 619 (Tex. Crim. App. 1991), rev’d on other
grounds, 503 U.S. 562 (1992) (per curiam). We overrule the second point of error.
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         C.       Any Error in Failure of Charge to Track Allegations in Indictment Was
                  Harmless

         Next, Hamilton complains that the jury charge did not specify that Winfred, the murder

victim, was also the robbery victim. The indictment alleged Hamilton killed Winfred while

robbing Winfred, specifically.

         Assuming, without deciding, that the inconsistency between the indictment and the charge

amounted to charge error, we find that Hamilton cannot establish that he suffered egregious harm. 6

When we examine a claim of egregious harm, we consider (1) the full charge, (2) “any other part

of the record as a whole which may illuminate the actual, not just theoretical, harm to the accused,”

and (3) arguments of counsel. Almanza, 686 S.W.2d at 174; see also Warner v. State, 245 S.W.3d

458, 461 (Tex. Crim. App. 2008).

                  1.        The Trial Court’s Charge

         The trial court’s charge, beyond Hamilton’s complaint that it should have limited the

allegation of robbery to Winfred as the victim, accurately presented the applicable law and

explained the requirements for finding the defendant guilty.

                  2.        The Record

         The evidence of Hamilton’s guilt was substantial and compelling. Indeed, Hamilton

admitted that he broke into Roland’s safe and took jewelry, coins, a car key, 7 and a .357 pistol.


6
 Because Hamilton lodged no objection to the trial court, we will not reverse the judgment unless Hamilton suffered
egregious harm. See Almanza, 686 S.W.2d at 171. That is, Hamilton must have been deprived of a fair and impartial
trial. Id. “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.” Marshall v. State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).
7
 Among the items retrieved upon Hamilton’s arrest was a key fob for a Mercedes. Roland owned a Mercedes. This
leads to the inference that Hamilton acquired the spare key fob from Roland’s safe.
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Hamilton claimed that he took the .380 Cobra pistol, but took it several months earlier, and that,

in the interim, it had been stolen from him. Yet, three witnesses testified that they saw Hamilton

with one or both pistols the night of the murder and that Hamilton was trying to sell the guns as

well as various pieces of jewelry. 8 Two of those witnesses also testified that Hamilton told them

he had just shot someone. While Hamilton told law enforcement that he was with a young woman

named Ebony the night Winfred was killed, Ebony testified that she had been at the fair with three

friends that night and was never with Hamilton that evening. Also, Hamilton was arrested after

being stopped while driving Winfred’s car. 9

           Hamilton also told the jury that he broke into Roland’s safe with a crowbar. 10 The State

presented evidence that, on the day before he killed Winfred, Hamilton asked on Facebook if

anyone had a crowbar. A witness also testified that he in fact gave Hamilton a crowbar in the days

right before the killing. That crowbar was later found in Roland’s closet.

                    3.       The Arguments

           In its opening statement, the State described evidence it intended to offer during trial. The

State also said the jury would hear that Hamilton “stole some other stuff” as well as the car Winfred

drove, that Hamilton got the murder weapon from Roland’s closet, and that after killing Winfred,

Hamilton sold that pistol. In closing argument, the State told the jury that Hamilton had taken


8
    When Hamilton was arrested, he was wearing at least one of Roland’s watches.
9
 While the record suggests that Roland owned the car, Roland said he had effectively given it to Winfred for Winfred’s
exclusive use. Thus, Winfred had a greater right of possession to that car than Hamilton. See Garza v. State, 344
S.W.3d 409, 413 (Tex. Crim. App. 2011).
10
 Hamilton was not excluded as a contributor of blood found on the safe, and he acknowledged cutting himself as he
broke into the safe.
                                                          9
items belonging to Roland as well as Winfred’s cell phone and car. Neither party made any

argument about whether the jury had to find Hamilton guilty of robbing Winfred specifically.

        Finally, we point out that only one robbery occurred here. The “gravamen of robbery

offenses, including aggravated robbery, is the defendant’s assaultive conduct against each victim.”

Ex parte Denton, 399 S.W.3d 540, 546 (Tex. Crim. App. 2013) (orig. proceeding). The evidence

showed Hamilton stole property from both Roland and Winfred, but only exhibited assaultive

conduct against Winfred. Roland was not home when Hamilton broke into Roland’s safe; obtained

property, including a .380 pistol; shot Winfred in the head with that pistol; and then fled with

Winfred’s car and cell phone. The only robbery was of Winfred, who was then intentionally killed

by Hamilton. 11

        For these reasons, we find that even if failure to charge the jury in specific accordance with

the indictment was error, it was harmless. As a result, we overrule Hamilton’s challenges to the

jury charge. 12

III.    Modification of Court Costs in Judgment

        In his second point of error, Hamilton points out an inconsistency in the clerk’s record.

While the judgment imposes court costs of $294.00, the court’s bill of costs only supports $274.00

in court costs. The State agrees.




11
 The gravamen of capital murder is the death of the decedent along with the alleged aggravating circumstances. See
Gardner v. State, 306 S.W.3d 274, 302 (Tex. Crim. App. 2009).
12
  As noted above, Hamilton also argues that the cumulative effect of the three purported errors egregiously harmed
him. As we find only one harmless error in the charge, there is no cumulative effect of multiple charge error.
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       We have the authority to modify the judgment to make the record speak the truth when the

matter has been called to our attention by any source. French v. State, 830 S.W.2d 607, 609 (Tex.

Crim. App. 1992). “Our authority to reform incorrect judgments is not dependent on the request

of any party, nor does it turn on a question of whether a party has or has not objected in trial court;

we may act sua sponte and may have a duty to do so.” Rhoten v. State, 299 S.W.3d 349, 356 (Tex.

App.—Texarkana 2009, no pet.) (citing Asberry v. State, 813 S.W.2d 526, 531 (Tex. App.—Dallas

1991, pet. ref’d)); see French, 830 S.W.2d at 609. The Texas Rules of Appellate Procedure also

provide direct authority for this Court to modify the trial court’s judgment. TEX. R. APP. P. 43.2.

We, therefore, sustain Hamilton’s second point of error and modify the trial court’s judgment to

reflect court costs of $274.00.

IV.    Conclusion

       We overrule Hamilton’s challenges to the trial court’s charge, but we sustain his point of

error with respect to the court costs and modify the trial court’s judgment to reflect court costs of

$274.00. As modified, we affirm the trial court’s judgment.




                                               Scott E. Stevens
                                               Justice

Date Submitted:        October 25, 2019
Date Decided:          December 16, 2019

Do Not Publish




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