                        COURT OF APPEALS
                        SECOND DISTRICT OF TEXAS
                             FORT WORTH

                             NO. 02-17-00173-CR


TORY DESHUNE BYRD                                                 APPELLANT

                                      V.

THE STATE OF TEXAS                                                     STATE

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          FROM THE 78TH DISTRICT COURT OF WICHITA COUNTY
                      TRIAL COURT NO. 57,088-B

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                       MEMORANDUM OPINION1

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                               I. INTRODUCTION

      A jury convicted Appellant Tory Deshune Byrd of intentionally evading

arrest or detention with a prior conviction of the same, and the trial court

sentenced him to twelve years’ confinement. In a single issue, Byrd contends

that he suffered egregious harm because the deliberation instruction portion of



      1
      See Tex. R. App. P. 47.4.
the jury charge contained grammatical errors instructing the presiding juror to

sign only “one of the forms attached hereto” for “each count” even though only

one form was attached and Byrd was charged with only one count. Byrd alleges

that the improper pluralization of “form” and “count” led the jury to erroneously

conclude that he was charged with multiple counts, which might have led the jury

to erroneously convict him based solely on his prior conviction. Byrd did not

object to the jury charge. Because the record on appeal fails to reflect that Byrd

suffered egregious harm from the unobjected-to alleged charge error, we will

affirm.

                  II. FACTUAL AND PROCEDURAL BACKGROUND

      On January 13, 2016, at approximately 11:45 a.m., Wichita Falls Police

Officer Deanna Tofte responded to a call at a residence in Wichita County,

Texas, regarding a disturbance and the possible commission of a crime. At trial,

Officer Tofte testified that when she arrived at the residence, she was informed

that the two people involved in the disturbance had left on foot and were traveling

north. Officer Tofte was apprised that the two individuals were black males and

that one man was wearing a blue shirt and gray pants and the other man was

wearing a gray and blue flannel shirt. Through a radio dispatch, Officer Tofte

advised other officers of the direction that the two men were travelling, when they

were last seen, what they were wearing, and of her concerns for officer safety.

      At the time of Officer Tofte’s radio call, Patrol Officer Chad Nelson was on

patrol in the area, driving a “Crown Vic style” marked patrol car, and wearing his


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police uniform with a badge affixed to his chest. At trial, Officer Nelson testified

that he received a dispatch that the two suspects had left the residence and were

traveling north on foot toward a nearby bike trail. Officer Nelson testified that the

dispatch described the suspects as two black males, one wearing a blue shirt

and gray pants and the other wearing a blue and gray flannel shirt.

      Officer Nelson arrived at the bike trail and drove his patrol car over the

curb and through the grass toward the trail and bridge. There was a creek with a

rocky bank below the bridge. Upon reaching the bike path, Officer Nelson saw a

black male wearing a blue shirt and gray pants, standing on the north side of the

creek. When Officer Nelson drove his patrol car over a bridge to the north side of

the creek, he testified that the man crossed back over the creek to the south

side. Officer Nelson put the patrol car in reverse and drove back to the south

side of the creek. Officer Nelson testified that he then saw a second black male

wearing a blue and gray flannel shirt. Officer Nelson did not turn on his lights or

engage the patrol car’s intercom system to communicate with the men.

      Officer Nelson testified that he stepped out of the patrol car and yelled to

the two men, “Stop, Police; Just stay where you are.” Officer Nelson estimated

that the two men were fifty yards away from him when he yelled for them to stop.

Officer Nelson testified that both men looked at him and yelled something that he

could not understand. Officer Nelson testified that the men then ran north back

across the creek bed and that he pursued them on foot. Officer Nelson testified

that after a short pursuit, a second Wichita Falls Police Officer, Dale Finnegan,


                                         3
approached the two men from a different direction.         Officer Finnegan yelled

commands to the two men, and the two men laid down on their chests. 2 Officer

Nelson testified that the two men had travelled approximately two-tenths of a mile

from the time he first yelled at them to stop until the time that they were detained.

      The State indicted Byrd for intentionally evading arrest or detention from

Officer Nelson.3 The indictment alleged a previous conviction for evading arrest

or detention,4 as well as previous convictions for felony possession of a

controlled substance and felony assault of public servant.

      On May 9, 2017, the trial court presided over a trial on the merits. After the

State and Byrd rested, the trial court held a charge conference, at which Byrd

made no objections. The jury deliberated and returned a verdict of guilty, finding

Byrd guilty of the offense of evading arrest or detention with a prior conviction.

      In this appeal, Byrd raises a single issue challenging the following portion

of the jury charge that concerned deliberation instructions:

      Your verdict must be unanimous, and after you have arrived at your
      verdict, you may use one of the forms attached hereto by having
      your presiding juror sign his or her name to the particular form that


      2
        Officer Finnegan testified that he had pointed his AR-15 and moved
toward the two men while he was giving commands. Officer Finnegan testified
that although the two men did not immediately comply with his commands, they
eventually complied and laid down on their chests.
      3
       See Tex. Penal Code Ann. § 38.04(b) (West 2016).
      4
       Byrd had previously been convicted on May 2, 2014, of evading arrest or
detention with a previous conviction.


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      conforms to your verdict, but in no event shall he or she sign more
      than one of such forms as to each count. [emphasis added]

Byrd contends that by instructing the jury regarding multiple “forms” and “each

count,” the charge improperly suggested there were multiple counts and forms

when, in fact, this case only concerned one count and one form. Byrd contends

that this likely confused the jury because Byrd’s prior conviction for evading

arrest or detention was an element of the offense that he was charged with in the

present indictment.       Moreover, the indictment includes both evading arrest

charges, as well as two other convictions.      Thus, Byrd asserts that the jury

charge was in error, egregiously harmed him, and warrants reversal and either

acquittal or new trial.

                              III. STANDARD OF REVIEW

      “[A]ll alleged jury-charge error must be considered on appellate review

regardless of preservation in the trial court.” Kirsch v. State, 357 S.W.3d 645,

649 (Tex. Crim. App. 2012). In our review of a jury charge, we first determine

whether error occurred; if error did not occur, our analysis ends. Id. If error

occurred, whether it was preserved determines the degree of harm required for

reversal. 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 (West 2006).            The

appropriate inquiry for egregious harm is fact specific and must be performed on



                                         5
a case-by-case basis. 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, “the actual degree of harm

must be assayed 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. We address each of the

four factors articulated in Almanza. See id. at 171; Valencia v. State, No. 02-14-

00406-CR, 2015 WL 7820384, at *3 (Tex. App.—Fort Worth Dec. 3, 2015, no

pet.) (mem. op., not designated for publication).

                                   IV. ANALYSIS

      The first question we must resolve is whether error actually occurred.

Although the State minimizes the error by labeling it “typographical,” the State

does not disagree with Byrd’s contention that the jury charge does, in fact,

improperly pluralize “form” and “count.” Therefore, it is undisputed that the jury

charge contains error, however minute.


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      The next question we must resolve is whether the error was preserved.

The State asserts that Byrd made no objection at the charge conference. Our

review of the record confirms that Byrd made no objection at the charge

conference. Therefore, the error warrants reversal only if it resulted in egregious

harm. See Almanza, 686 S.W.2d at 171.

      To determine whether the error resulted in an egregious harm, we now

consider the four Almanza factors.

                           A. The Entire Jury Charge

      “The purpose of the trial judge’s jury charge is to instruct the jurors on all of

the law that is applicable to the case.” Vasquez v. State, 389 S.W.3d 361, 366

(Tex. Crim. App. 2012). “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.” Id. (quoting Dinkins v. State, 894 S.W.2d

330, 339 (Tex. Crim. App. 1995)).

      A jury charge contains an abstract paragraph and an application

paragraph. The “abstract or definitional paragraphs serve as a kind of glossary

to help the jury understand the meaning of concepts and terms used in the

application paragraphs of the charge.” Plata v. State, 926 S.W.2d 300, 302 (Tex.

Crim. App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234

(Tex. Crim. App. 1997)). “The application paragraph is what explains to the jury,

in concrete terms, how to apply the law to the facts of the case.” Yzaguirre v.

State, 394 S.W.3d 526, 530 (Tex. Crim. App. 2013).


                                          7
      The relevant portion of the application paragraph here reads as follows:

      [I]f you believe from the evidence beyond a reasonable doubt that
      the defendant, Tory Byrd, on or about the 13th day of January, 2016,
      in Wichita County, Texas did then and there intentionally flee from
      Chad Nelson, a person the defendant knew was a peace officer who
      was attempting lawfully to arrest or detain the defendant, and that,
      prior to the commission of the aforesaid offense, on May 2, 2014, in
      case number 53,484-B in the 78th District Court of Wichita County,
      Texas, the defendant was convicted under Section 38.04, Penal
      Code, of the offense of Evading Arrest Detention with Previous
      Conviction, you will find the defendant guilty of the offense of
      Evading Arrest or Detention with Previous Conviction as alleged in
      the indictment . . . .

       Byrd does not claim error exists in the application paragraph of the jury

charge. Instead, he claims error exists only in the deliberation instruction portion

of the jury charge. And generally, when considering the entire jury charge in an

Almanza analysis, errors in the abstract or deliberation instructions do not

constitute egregious harm. 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 egregious.”). Under this factor, the error in

the jury charge does not rise to the level of egregious harm.

                          B. The State of the Evidence

      Looking to the state of the evidence, there was ample evidence to support

the jury’s finding that Byrd evaded the lawful arrest or detention of Officer Nelson

on January 13, 2016. The testimony of Officer Nelson demonstrates that he

yelled at Byrd to stop; but Byrd yelled something back and ran in the opposite

direction. Further, the State’s fingerprint expert, Annette Wang, testified at trial



                                          8
that Byrd was the same person who had been previously convicted for evading

arrest or detention on May 2, 2014.          Therefore, considering the error in the

deliberation paragraph of the jury charge in light of the state of the evidence at

trial, Byrd did not suffer egregious harm.

                            C. Argument of Counsel

      Looking to the arguments of counsel, Byrd’s counsel made no argument

concerning the May 2, 2014 conviction.          The prosecutor mentioned the prior

evading arrest or detention conviction three times: in his opening statement, in

offering the State’s exhibit number 1, and in his closing argument. In fact, in the

prosecutor’s closing argument, he specifically referred to the May 2, 2014

conviction as supporting only a specific element of the offense for which Byrd

was being tried. Therefore, the prosecutor’s closing argument likely clarified any

confusion that the error in the deliberation instruction might have caused and

supports that Byrd did not suffer egregious harm. See Craaybeek v. State, No.

02-15-00454-CR, 2016 WL 4491225, at *3 (Tex. App.—Fort Worth Aug. 26,

2016, pet ref’d) (mem. op., not designated for publication) (holding no egregious

harm occurred when the prosecutor’s closing argument actually clarified an

erroneous definition in jury charge).

                             D. The Trial as a Whole

      Looking to the other relevant information in the record as a whole, during

voir dire, the prosecutor clearly stated that the prior conviction was only a part of

the State’s case against Byrd:


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      We would need to prove that on or about January 13, 2016, here in
      Wichita County, Tory Deshune Byrd did then and there intentionally
      flee from Chad Nelson, a person the defendant knew was a peace
      officer who was attempting lawfully to arrest or detain the defendant,
      and that he had a prior conviction for evading arrest/detention.
      [emphasis added]

Shortly thereafter, the prosecutor reaffirmed that the prior conviction was only

part of the State’s case against Byrd and even cautioned that the prior conviction

did not establish Byrd’s guilt for the instant offense:

      [I]n order to get into this courtroom, we need to prove that the
      defendant has a previous conviction for evading arrest. Now, just
      because someone has been convicted of something at one point in
      their life does not mean they automatically did something else later
      on, right? The State needs to be held to its burden of proof in that
      way.

      From the outset of trial, the State clearly identified the prior conviction for

evading arrest or detention as being merely an element or part of Byrd’s instant

offense, and that the existence of the prior conviction alone did not mean that the

State had proved Byrd’s guilt of the instant offense. Thus, the record as a whole

does not show that the grammatical error in the deliberation instructions caused

Byrd to suffer egregious harm.

      Having examined the four Almanza factors and having concluded that

none of them weigh in favor of egregious harm, we hold that the grammatical

error in the deliberation instruction portion of the jury charge did not deprive Byrd

of a valuable right, vitally affect his defensive theory, or make the case for

conviction clearly and significantly more persuasive. See Almanza, 686 S.W.2d

at 171; Taylor, 332 S.W.3d at 490.


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                                   V. CONCLUSION

      Having held that the error in the deliberation instruction in the jury charge

was not an egregious harm, we overrule Byrd’s single issue on appeal and affirm

the judgment of the trial court.

                                                   /s/ Sue Walker
                                                   SUE WALKER
                                                   JUSTICE

PANEL: WALKER, MEIER, and GABRIEL, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 1, 2018




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