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

          No. 02-18-00179-CR
     ___________________________

 VICTOR ORTIZ GONZALEZ, Appellant

                    V.

         THE STATE OF TEXAS


  On Appeal from the 432nd District Court
         Tarrant County, Texas
       Trial Court No. 1497894D


   Before Gabriel, Kerr, and Pittman, JJ.
  Memorandum Opinion by Justice Gabriel
                           MEMORANDUM OPINION

      Appellant Victor Ortiz Gonzalez appeals from his convictions for aggravated

assault against a public servant and for evading arrest or detention. He argues that his

aggravated-assault conviction was supported by insufficient evidence and that the jury

charge egregiously harmed him because it instructed the jury on a culpable mental

state that was not alleged in the indictment. Finally, Appellant asserts that his $10,000

fine assessed for evading arrest must run concurrently with the $10,000 fine assessed

for assault; thus, the order to withdraw funds incorporated into the evading judgment

may only authorize withdrawal of one of the fines, not both. We conclude that the

jury-charge error egregiously harmed Appellant and reverse the aggravated-assault

judgment for further proceedings.      Based on this holding we need not address

Appellant’s fine complaint, and we affirm the trial court’s judgment convicting

Appellant of evading arrest or detention.

                                 I. BACKGROUND

                                  A. THE OFFENSES

      Officers Taylor Rogers and Craig Chambers were dispatched to locate a vehicle

that had stolen merchandise inside. The merchandise, which was equipped with a

tracking device, had been placed in a “bait” car by the police and then was stolen.1

Rogers and Chambers quickly located the vehicle—a yellow Hummer—based on the


      1
       Only the merchandise was stolen, not the bait car.


                                            2
merchandise’s tracking device. After seeing the Hummer roll through a stop sign,

Chambers turned on the patrol car’s roof lights and initiated a traffic stop. The

Hummer accelerated, “dust flying,” after turning into an apartment complex’s parking

lot. One person in the parking lot had to run to get away from the Hummer.

Chambers, who was driving the patrol car, sped after the Hummer. The Hummer

sped to a locked gate and stopped. Chambers drove the patrol car to the driver’s side

of the Hummer, stopping the front of the patrol car close to and even with the

Hummer’s front bumper to keep the driver from getting out of the Hummer.

Another officer, Kendall Harris, drove his patrol car close to and even with the

passenger side of the Hummer. Harris saw Rogers put his right leg outside his patrol

car to get out. The Hummer accelerated and began to reverse, pinning Rogers

between the patrol car and the Hummer. Chambers yelled to alert Rogers that the

Hummer was moving. Before Rogers could react, the driver of the Hummer looked

in the rearview mirror, continued to accelerate, and reversed away from both patrol

cars, damaging both. While the Hummer was reversing, Rogers can be heard on the

dashboard video saying, “Ow, my leg.” The Hummer also hit “several” other cars in

the complex parking lot. Chambers and Rogers ran after the Hummer, but had to

stop after Rogers’s leg, elbow, and chest pain became severe. Harris saw the Hummer

crash into a structure and saw the driver run away.

      Fingerprints from the Hummer were matched to Appellant. Rogers was able

to identify Appellant from a photo array as the driver of the Hummer. After a

                                           3
warrant was issued, Appellant was arrested. The investigating detective interviewed

Appellant, and after first denying any involvement, Appellant admitted he was the

driver of the Hummer. He also admitted that “he knew exactly where the officers’

cars were at and that they were police officers behind him and around him, especially

when he put . . . the Hummer into reverse.” When the investigating detective told

Appellant that an officer had been hurt after Appellant pinned him between the patrol

car and the Hummer, Appellant cried.

                           B. INDICTMENT AND TRIAL

      Appellant was indicted with the first-degree felony of aggravated assault of a

public servant with a deadly weapon—the Hummer—and with the third-degree

felony of evading arrest or detention with a vehicle—again, the Hummer.2 See Tex.

Penal Code Ann. §§ 22.02, 38.04 The indictment alleged that Appellant used the

Hummer as a deadly weapon and contained a repeat-offender notice, alleging that

Appellant had been convicted in 2005 of possessing one gram or more but less than

four grams of methamphetamine—a third-degree felony. See id. § 12.42(a), (c)(1); Tex.

Health & Safety Code Ann. § 481.115(c).

      A jury found Appellant guilty of aggravated assault of a public servant with a

deadly weapon, found Appellant guilty of evading arrest or detention, found that the

deadly-weapon allegation regarding evading arrest or detention had been proved

      2
       The indictment contained other counts arising from the same criminal episode;
but these two counts were the only ones the State took to trial.


                                          4
beyond a reasonable doubt, found that the repeat-offender notice was true,3 and

assessed his punishment at 45 years’ confinement for assault and at 20 years’

confinement for evading arrest or detention. The jury also assessed a $10,000 fine for

each offense. The trial court entered judgments in accordance with the jury’s verdicts,

ordering the sentences to run concurrently. See Tex. Penal Code Ann. § 3.03(a). The

incorporated order to withdraw funds authorized withdrawals from Gonzalez’s

inmate trust account for “[c]ourt costs, fees and/or fines and/or restitution . . . in the

amount of $20,319.”4

         Appellant filed a motion for new trial, arguing that “the verdict is contrary to

the law and the evidence.” See Tex. R. App. P. 21.3(h). The motion was deemed

denied. See Tex. R. App. P. 21.8(c).

    II. SUFFICIENCY OF THE EVIDENCE: AGGRAVATED ASSAULT

         In his second point, Appellant argues that the evidence was insufficient to

support a finding that he intentionally or knowingly committed aggravated assault.

Appellant was charged with the intentional or knowing aggravated assault on a public

servant—Rogers—while using a deadly weapon, which is a result-oriented offense.

See Tex. Penal Code Ann. § 22.02(a), (b)(2)(B); Shelby v. State, 448 S.W.3d 431, 439


        Appellant had pleaded true to the repeat-offender notice, and the trial court
         3

instructed the jury to find the notice true.

         The assault judgment noted that Gonzalez was responsible for $319 in court
         4

costs.


                                             5
(Tex. Crim. App. 2014). A person acts intentionally with respect to the result of his

conduct when it is his conscious objective or desire to cause the result. See Tex. Penal

Code Ann. § 6.03(a). A person acts knowingly with respect to his conduct’s result if

he is aware that his conduct is reasonably certain to cause the result. See id. § 6.03(b).

Appellant argues that even if Rogers’s attempt to get out of the patrol car was

obvious, no evidence shows Appellant “either intended to cause bodily injury or knew

his actions were likely to result in bodily injury to . . . Rogers.” Appellant asserts that

his obvious intent was to escape, not to injure Rogers. And he posits that it may be

reasonably inferred from the evidence that he could not have expected Rogers to get

out of the patrol car and was not aware that Rogers had been pinned between the

patrol car and the Hummer.

      In our due-process review of the sufficiency of the evidence to support

Appellant’s aggravated-assault conviction, we view all of the evidence in the light most

favorable to the verdict to determine whether any rational trier of fact could have

found the elements of the offense beyond a reasonable doubt. See Jackson v. Virginia,

443 U.S. 307, 319 (1979); Jenkins v. State, 493 S.W.3d 583, 599 (Tex. Crim. App. 2016).

The trier of fact—here, the jury—is the sole judge of the weight and credibility of the

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04; Blea v. State, 483 S.W.3d 29, 33

(Tex. Crim. App. 2016). Thus, we may not substitute our judgment for the jury’s by

re-evaluating those implicit findings. See Montgomery v. State, 369 S.W.3d 188, 192 (Tex.

Crim. App. 2012).      Instead, we determine whether the necessary inferences are

                                            6
reasonable based upon the cumulative force of the evidence when viewed in the light

most favorable to the verdict. Murray v. State, 457 S.W.3d 446, 448 (Tex. Crim. App.

2015). We must presume that the jury resolved any conflicting inferences in favor of

the verdict and defer to that resolution. Id. at 448–49; see Blea, 483 S.W.3d at 33.

      Appellant admitted that he drove the Hummer and that he did not pull over

when the patrol car tried to pull him over. Instead, he drove through the complex’s

parking lot at a high rate of speed to avoid arrest or detention and when he reached a

dead end, he put his car in reverse and accelerated into both patrol cars that had tried

to block him in. Appellant acknowledged that he knew the cars were police cars and

that they were on either side of the Hummer when he reversed into them. Rogers

was pinned between his patrol car and the Hummer, injuring his right leg, his right

elbow, and his chest, which required medical treatment. When Appellant began to

accelerate away, Rogers can be heard on the dashboard video saying that his leg was

hurt. After crashing the Hummer, Appellant admitted he jumped out and ran away.

      This evidence, viewed in the light most favorable to the verdict, allowed the

jury to rationally infer that it was Appellant’s conscious objective or desire to cause

the result or that he was aware that his conduct was reasonably certain to cause the

result. See, e.g., Onyinyechi v. State, No. 01-16-00551-CR, 2017 WL 3027665, at *3–4

(Tex. App.—Houston [1st Dist.] July 18, 2017, pet. ref’d) (mem. op., not designated

for publication); Dominique v. State, No. 01-09-00385-CR, 2010 WL 1571180, at *3–5

(Tex. App.—Houston [1st Dist.] Apr. 8, 2010, pet. ref’d) (mem. op., not designated

                                            7
for publication); Mayfield v. State, Nos. 09-07-005 CR, 09-07-006 CR, 09-07-007 CR,

2008 WL 4936889, at *4–5 (Tex. App.—Beaumont Nov. 19, 2008, no pet.) (mem.

op., not designated for publication). Contrary to Appellant’s arguments, we cannot

credit inferences that the jury obviously did not nor can we ignore inferences that the

jury implicitly drew. See Murray, 457 S.W.3d at 448–49; see also Patrick v. State, 906

S.W.2d 481, 487 (Tex. Crim. App. 1995) (recognizing jury may infer intent from

defendant’s words, acts, and conduct).      A rational fact-finder could have found

beyond a reasonable doubt that Appellant knew the police officers were intent on

apprehending him and, out of necessity, would step out of their patrol cars after

blocking his Hummer in. The fact-finder could have found beyond a reasonable

doubt that Appellant acted intentionally or knowingly in injuring Rogers by reversing

and accelerating into the patrol cars, knowing that they were there. We overrule

Appellant’s second point.

          III. JURY-CHARGE ERROR: AGGRAVATED ASSAULT

      In his first point, Appellant recognizes that he did not object to the jury charge

and argues that he was egregiously harmed by the trial court’s inclusion of a mental

state that was not included in the aggravated-assault indictment—recklessness. The

State “acknowledges that a trial court improperly broadens an indictment by including

the reckless culpable mental state when the indictment just alleges the intentional and

knowing culpable mental states even though the aggravated assault statute permits

conviction based on reckless conduct.” Indeed, the indictment alleged the culpable

                                          8
mental states of intentionally and knowingly, but the charge additionally instructed the

jury on recklessness in the abstract and application paragraphs regarding aggravated

assault.   Accordingly, both Appellant and the State focus on whether Appellant

suffered egregious harm, which is the appropriate standard for jury-charge error that

was not objected to. See Tex. Code Crim. Proc. Ann. art. 36.19; Nava v. State,

415 S.W.3d 289, 298 (Tex. Crim. App. 2013).

       To make this fact-specific determination, we consider the entire charge; the

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

evidence; the parties’ jury arguments, including any statements made to the jury by the

State, Appellant’s counsel, or the trial court during trial; and any other relevant

information in the record. See Arrington v. State, 451 S.W.3d 834, 840, 844 (Tex. Crim.

App. 2015); Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App. 2013); Taylor v.

State, 332 S.W.3d 483, 489–90 (Tex. Crim. App. 2011); Hutch v. State, 922 S.W.2d 166,

171 (Tex. Crim. App. 1996); see also Tex. Code Crim. Proc. Ann. art. 36.19. We look

not for theoretical harm but for actual harm. See Arrington, 451 S.W.3d at 840, 844;

Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). Egregious harm is a “high

and difficult standard” to meet, and such a determination must be “borne out by the

trial record.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015).

                           A. THE ENTIRE JURY CHARGE

       In the abstract portion of the charge, the trial court defined intentional and

knowing, but also defined recklessness. The abstract charge instructed that a person

                                            9
commits aggravated assault of a public servant if the person acts intentionally,

knowingly, or recklessly. In the application paragraph, the charge again included

recklessly along with intentionally and knowingly as applicable culpable mental states.

Cf. 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.”); 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”). In sum, the charge authorized

the jury to convict Appellant on a lesser culpable mental state than that with which he

was charged, lowering the State’s burden of proof. Nothing in the charge, such as the

application paragraph for the offense at issue, lessened the effect of the error. This

factor weighs in favor of egregious harm. See Limon v. State, No. 03-10-00666-CR,

2012 WL 5392160, at *3 (Tex. App.—Austin Nov. 2, 2012, no pet.) (mem. op., not

designated for publication).

                         B. THE STATE OF THE EVIDENCE

      As we discussed above, the evidence supported Appellant’s guilt of either

knowing or intentional conduct with respect to the result of his actions. See Mabry v.

State, Nos. 02-13-00066-CR, 02-13-00067-CR, 2014 WL 4463117, at *6–7 (Tex.

App.—Fort Worth Sept. 11, 2014, pet. ref’d) (mem. op., not designated for

publication); Rivera v. State, 12 S.W.3d 572, 577 (Tex. App.—San Antonio 2000, pet.

ref’d). Importantly, Appellant admitted that he knew police officers were trying to

                                          10
pull him over, that he sped off, and that he crashed into the police cars after he hit a

dead end. See Faulkenberry v. State, No. 03-18-00265-CR, 2018 WL 3625791, at *5

(Tex. App.—Austin July 31, 2018, pet. ref’d) (mem. op., not designated for

publication); Russell v. State, No. 05-00-01978-CR, 2002 WL 59264, at *6 (Tex. App.—

Dallas Jan. 16, 2002, pet. ref’d) (not designated for publication). This factor weighs

against egregious harm.

                           C. STATEMENTS TO THE JURY

      During voir dire, the prosecutor argued that it had to prove that Appellant

committed aggravated assault of a public servant intentionally, knowingly, or

recklessly, but “[n]ot all three.” He stressed to the venire that it could find Appellant

guilty if it believed “he, at the most, intentionally or at the very least recklessly”

committed the aggravated assault. The prosecutor defined “reckless” and then asked

the venire what a driver could do that would equate to recklessness—consciously

disregarding the likelihood of the result of the driver’s conduct. See Tex. Penal Code

Ann. § 6.03(c).    At the end of several hypotheticals about reckless driving, the

prosecutor asked if recklessness would “not [be] enough” for any of the

veniremembers; several indicated that they were “good on reckless.”           However,

Appellant’s counsel also discussed recklessness in the context of driving, pointing out

that almost any action done while driving could be considered reckless.

      Before opening arguments, the prosecutor read the indictment to the jury and

correctly read the two indicted culpable mental states—intentionally or knowingly.

                                           11
Recklessly was not mentioned. During his opening statement to the jury, Appellant’s

counsel stated that a “key element” of the State’s case was whether the offense had

been committed “intentionally, knowingly or reckless[ly].” However, the prosecutor

argued to the jury in her opening statement that the evidence would show Appellant

“intentionally uses his vehicle to commit assault against Officer Rogers that night.”

      That same prosecutor, in her closing argument, repeatedly mentioned

recklessness as a culpable mental state that the jury was authorized to consider along

with intentionally and knowingly:

      There are three state-of-mind requirements that are within aggravated
      assault of a public servant. You-all don’t have to agree on the same state
      of mind. For example, four of you may decide that this defendant was
      reckless on April 24th, 2017. And reckless is defined basically as the
      Defendant is aware of a fact but consciously disregards that fact in his
      actions.

             ....

             You heard testimony that the Defendant was reckless in the way
      he drove his vehicle through that apartment complex, and he was
      reckless in reversing it into Officer Chambers’ and Rogers’ patrol vehicle
      and Officer Harris who testified as well. The four of you – four out of
      the twelve may decide the Defendant was reckless.

             Four of you may decide that the defendant acted knowingly in the
      aggravated assault on April 24th, 2017. The knowingly state of mind
      requirement is basically that the Defendant was aware his conduct was
      reasonably certain to cause a result and he disregarded that.

             The evidence we have for knowingly is really by the defendant’s
      own admission . . . that the police officers had parked behind him so
      close that he was unable to move.

             ....

                                           12
             Four of you can decide the Defendant acted knowingly. The
      other four can decide the Defendant acted intentionally. There is
      sufficient evidence for that as well beyond a reasonable doubt. . . .

             ....

             That’s your intentionally state of mind. You all 12 don’t have to
      agree on the same state of mind requirement.

The prosecutor further argued that the jury could convict Appellant of aggravated

assault of a public servant if it found one of the three culpable mental states and

stated that Appellant had been reckless by putting his car in reverse.

      In Appellant’s closing argument to the jury, counsel asserted that neither

intentional nor knowing “fits in there” because Appellant did not “intend to hit that

officer.” Appellant’s counsel further stated that “it [was] a reckless act to start to pull

the car back.” The second prosecutor, in his closing jury argument, mentioned the

three culpable mental states, including recklessness, and argued that Appellant’s

conduct was “an intentional act” and “in the very least, knowingly is there.” But he

continued and asserted that evidence showing Appellant was “reckless is

overwhelming.”

      We conclude that recklessness was repeatedly mentioned as an applicable

culpable mental state, co-equal with intentional or knowing conduct.            The State

stressed recklessness as an alternative theory if the jury could not find intentional or

knowing conduct. This factor weighs in favor of an egregious-harm finding. See Kuhn



                                            13
v. State, 393 S.W.3d 519, 530–31 (Tex. App.—Austin 2013, pet. ref’d); Limon,

2012 WL 5392160, at *3–4.

                        D. OTHER RELEVANT INFORMATION

       Neither the State nor Appellant points to any other record information relevant

to our harm analysis; but courts have considered things such as the jury’s rejection of

a charged count and whether the jury sent clarification requests during their

deliberations. See Flores v. State, 513 S.W.3d 146, 161 (Tex. App.—Houston [14th

Dist.] 2016, pet. ref’d). The jury convicted Appellant of both counts it considered and

sent no clarification requests during its guilt deliberations. This factor is neutral.

                      E. SUMMARY OF HARM DETERMINATION

       As we recognized earlier, egregious harm is a high hurdle to clear. See Villarreal,

453 S.W.3d at 433. Only if a jury-charge error affects “the very basis of the case,

deprives the defendant of a valuable right [such as the right to a fair and impartial

trial], or vitally affects a defensive theory” may we declare that egregious harm

occurred. State v. Ambrose, 487 S.W.3d 587, 597 (Tex. Crim. App. 2016); Marshall v.

State, 479 S.W.3d 840, 843 (Tex. Crim. App. 2016).

       The charge here was erroneous by including, defining, and applying a non-

indicted culpable mental state for aggravated assault of a public servant. Both the

State and Appellant argued the meaning and application of recklessness to the jury.

The State argued that Appellant’s actions were intentional and knowing but also that

they were reckless. And after having questioned the venire during voir dire if the

                                            14
members could be “good” with reckless, the State argued to the jury in closing

argument that the individual jurors did not have to agree on the culpable mental state

(including recklessness) each believed had been proven. Cf. Starks v. State, No. 05-07-

00944-CR, 2008 WL 4981633, at *2 (Tex. App.—Dallas Nov. 25, 2008, pet. ref’d)

(mem. op., not designated for publication) (finding no egregious harm after non-

indicted mental state of recklessness was charged because “[r]ecklessness was not

discussed at voir dire or in closing argument at guilt/innocence” and because “[t]here

was no evidence that appellant acted recklessly during the incident”).

      Although the evidence supported Appellant’s conviction under the charged

mental states of intentionally or knowingly, the charge itself and the tenor of the trial

lowered the State’s burden to prove Appellant guilty beyond a reasonable doubt of the

indicted offense. Brown v. State, No. 04-03-00009-CR, 2004 WL 383342, at *6 (Tex.

App.—San Antonio Mar. 3, 2004), pet. dism’d, No. PD-0701-04, 2005 WL 1398609

(Tex. Crim. App. June 15, 2005) (per curiam) (not designated for publication). This

deprived Appellant of a fair trial. We conclude that Appellant was egregiously harmed

by the inclusion of recklessness in the charge as an applicable culpable mental state.

See Uddin v. State, 503 S.W.3d 710, 717–22 (Tex. App.—Houston [14th Dist.] 2016, no

pet.); Riley v. State, 447 S.W.3d 918, 928–30 (Tex. App.—Texarkana 2014, no pet.);

Limon, 2012 WL 5392160, at *2–4; Brown, 2004 WL 383342, at *5–6.




                                           15
                                 IV. CONCLUSION

      We conclude that the evidence was sufficient to support the jury’s verdict that

Appellant intentionally or knowingly committed aggravated assault of a public servant.

But by charging the jury on an un-indicted culpable mental state and by arguing to the

jury that recklessness was sufficient to convict Appellant, especially where Appellant’s

mental state was a disputed fact issue, the charge egregiously harmed Appellant by

lowering the State’s burden of proof. We reverse the trial court’s judgment convicting

Appellant of aggravated assault of a public servant and remand for further

proceedings. See Tex. R. App. P. 43.2(d).

      Appellant also challenges his conviction for evading arrest or detention and

points to the repetitive fine, which was also assessed as part of his concurrent

aggravated-assault conviction.    Because we are reversing the aggravated-assault

judgment, including the imposed fine, we need not address Appellant’s third issue and

affirm the trial court’s judgment convicting Appellant of evading arrest or detention.

See Tex. R. App. P. 43.2(a).


                                                      /s/ Lee Gabriel

                                                      Lee Gabriel
                                                      Justice

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

Delivered: May 9, 2019


                                            16
