                                 IN THE
                         TENTH COURT OF APPEALS

                                 No. 10-17-00404-CR

RUTHEN JAMES WEEMS,
                                                          Appellant
v.

THE STATE OF TEXAS,
                                                          Appellee



                          From the 54th District Court
                           McLennan County, Texas
                          Trial Court No. 2015-229-C2


                          MEMORANDUM OPINION


      In three issues, appellant, Ruthen James Weems, challenges his convictions for

aggravated assault with a deadly weapon and unlawful possession of a firearm by a

felon. See TEX. PENAL CODE ANN. §§ 22.02, 46.04 (West 2011). Specifically, Weems

contends that the trial court:   (1) abused its discretion by denying his motion for

continuance and motion for new trial; (2) abused its discretion by denying his

suppression motion; and (3) failed to properly instruct the jury regarding the culpable
mental states for aggravated assault by threat. Because we overrule all of Weems’s issues

on appeal, we affirm.

         I.      WEEMS’S MOTION FOR CONTINUANCE AND MOTION FOR NEW TRIAL

       In his first issue, Weems complains that the trial court abused its discretion by

failing to grant his motion for continuance to secure the testimony of an expert witness—

Dr. Charles Bux—and his motion for new trial premised on his motion for continuance.

Weems argues that his expert witness would have testified that the victim did not suffer

a gunshot wound, contrary to the testimony of several of the State’s witnesses.

       The denial of a motion for continuance is within the sound discretion of the trial

court, and we review a denial for an abuse of discretion. See Renteria v. State, 206 S.W.3d

689, 699 (Tex. Crim. App. 2006); see also Gutierrez v. State, 446 S.W.3d 36, 38 (Tex. App.—

Waco 2014, pet. ref’d). An appellant claiming the erroneous denial of a motion for

continuance must show: (1) the trial court erred in denying the motion for continuance;

and (2) the denial harmed him in some tangible way. Gonzales v. State, 304 S.W.3d 838,

843 (Tex. Crim. App. 2010).

       A motion for continuance based upon the unavailability of a witness is expressly

governed by statute. Id.; see TEX. CODE CRIM. PROC. ANN. art. 29.06 (West 2006). Article

29.06 provides that, if a continuance is sought because of the absence of a witness, the

motion must state: (1) the name and residence of the witness; (2) the diligence used to

procure the witness’s attendance; (3) the material facts expected to be proved by the


Weems v. State                                                                       Page 2
witness; (4) that the witness is not absent by the procurement or consent of the defendant;

(5) that the motion is not made for delay; and (6) that there is no reasonable expectation

that attendance of the witness can be secured during the present term of court by a

postponement of the trial to some future day of said term. TEX. CODE CRIM. PROC. ANN.

art. 29.06. A motion for continuance may be properly denied if the applicant does not

present evidence to the court that indicates a probability that a substitute witness can be

secured or that the continuance will not result in an indefinite delay. See Varela v. State,

561 S.W.2d 186, 191 (Tex. Crim. App. 1978); Rische v. State, 746 S.W.2d 287, 290 (Tex.

App.—Houston [1st Dist.] 1988), remanded on other grounds, 755 S.W.2d 477 (Tex. Crim.

App. 1988); see also Garay v. State, No. 08-01-00336-CR, 2003 Tex. App. LEXIS 7407, at *11

(Tex. App.—El Paso Aug. 28, 2003, pet. ref’d) (mem. op., not designated for publication).

       In his motion for continuance, which was filed on February 3, 2017, Weems stated

that Dr. Bux was procured to testify that Weems did not shoot the victim with a firearm

and, thus, the victim’s injuries were not the result of a gunshot wound. The motion then

mentioned that Dr. Bux was unavailable for the week of trial—February 13, 2017—

because he was scheduled to attend the American Academy of Forensic Sciences Annual

Convention in New Orleans, Louisiana, which is “the leading convention for forensic

scientists in the United States.” Weems alleged that he found out about this conflict the

week prior to the filing of his motion for continuance.




Weems v. State                                                                        Page 3
        The record shows that, on or about October 5, 2016, the trial court signed an agreed

order setting February 13, 2017 as a priority date for a jury trial in this matter.1 As such,

the parties were aware of the trial setting as early as October 5, 2016. However, Weems

did nothing to confirm the presence of Dr. Bux until less than two weeks before trial,

despite having spoken to Dr. Bux “at some point” to determine his opinion in this matter.

        Weems expressed in his motion for continuance that Dr. Bux could not attend trial

during the week of February 13, 2017, because he was attending an annual conference

that surely had been planned far in advance and would have been known to Dr. Bux and,

in turn, should have been expressed to Weems and the trial court in a more timely

fashion. Regardless, there is nothing in Weems’s motion for continuance adequately

explaining why Dr. Bux’s attendance at the annual conference was necessary or was a

priority when an obvious conflict for which he was being paid existed.

        Accordingly, we conclude that Weems has failed to demonstrate that he exercised

reasonable diligence in securing Dr. Bux’s attendance and in presenting his motion for

continuance. See TEX. CODE CRIM. PROC. ANN. art. 29.06(2); Dewberry v. State, 4 S.W.3d

735, 756 (Tex. Crim. App. 1999) (interpreting the diligence requirement “to mean not only

diligence in procuring the presence of the witness, but also diligence as reflected in the




        1The order states that the priority date for the jury trial was February 13, 2016; however, it is
apparent from the record that the order should have reflected the trial date as February 13, 2017, especially
considering this order was signed by the parties on October 5, 2016, and filed in the District Clerk’s Office
on October 6, 2016.

Weems v. State                                                                                        Page 4
timeliness with which the motion for continuance was presented”); see also Tucker v. State,

109 S.W.3d 517, 520 (Tex. App.—Tyler 1999, pet. ref’d) (“Diligence, in the motion for

continuance, context, is the exercise of timely and persistent efforts to secure the

attendance of witnesses, using the means and agencies provided by law. If defense

counsel waits until only a few days before trial to seek to secure a witness for trial, the

court may conclude that due diligence has not been used.” (internal citations omitted)).

       In addition to the foregoing, we also note that Weems’s request for a delay is

indeterminate. See Varela, 561 S.W.2d at 191; Rische, 746 S.W.2d at 290; see also Garay, 2003

Tex. App. LEXIS 7407, at *11. His written motion “prays that this Honorable Court enter

an order removing this case from its present setting of February 13, 2017.” However, at

the hearing on his motion for continuance, Weems speculated that Dr. Bux needed a delay

of the trial for three or four weeks “to work it in his schedule.” Weems did not provide

any additional specificity as to the length of the potential delay in either his motion or at

the hearing on his motion.

       Based on the foregoing, we cannot conclude that the trial court abused its

discretion by denying Weems’s motion for continuance. See Renteria, 206 S.W.3d at 699;

see also Gutierrez, 446 S.W.3d at 38.     And furthermore, because Weems’s appellate

complaints about his motion for new trial are premised on the trial court’s denial of a

continuance, we cannot conclude that the trial court abused its discretion by denying

Weems’s motion for new trial. We overrule Weems’s first issue.


Weems v. State                                                                         Page 5
                       II.    WEEMS’S MOTION TO SUPPRESS EVIDENCE

       In his second issue, Weems asserts that the trial court abused its discretion by

denying his motion to suppress evidence.           Weems argues that law enforcement

impermissibly entered his motel room without consent, a warrant, or exigent

circumstances and made observations that were then used to obtain a search warrant for

the room.

A.     Standard of Review

       We review the trial court's ruling on a motion to suppress evidence for an abuse

of discretion, using a bifurcated standard. See Crain v. State, 315 S.W.3d 43, 48 (Tex. Crim.

App. 2010); Guzman v. State, 955 S.W.2d 85, 88-89 (Tex. Crim. App. 1997). We give “almost

total deference” to the trial court's findings of historical fact that are supported by the

record and to mixed questions of law and fact that turn on an evaluation of credibility

and demeanor.      Guzman, 955 S.W.2d at 89.        We review de novo the trial court's

determination of the law and it application of law to facts that do not turn upon an

evaluation of credibility and demeanor. Id. When the trial court has not made a finding

on a relevant fact, we imply the finding that supports the trial court's ruling, so long as it

finds some support in the record. State v. Kelly, 204 S.W.3d 808, 818-19 (Tex. Crim. App.

2006); see Moran v. State, 213 S.W.3d 917, 922 (Tex. Crim. App. 2007). We will uphold the

trial court's ruling if it is reasonably supported by the record and is correct under any




Weems v. State                                                                          Page 6
theory of law applicable to the case. State v. Dixon, 206 S.W.3d 587, 590 (Tex. Crim. App.

2006).

         When ruling on a motion to suppress evidence, the trial judge is the sole trier of

fact and judge of the credibility of the witnesses and the weight to be given their

testimony. Wiede v. State, 214 S.W.3d 17, 24-25 (Tex. Crim. App. 2007). When reviewing

a trial court's ruling on a motion to suppress, we view all of the evidence in the light most

favorable to the ruling. Garcia-Cantu v. State, 253 S.W.3d 236, 241 (Tex. Crim. App. 2008).

B.       Applicable Law

         The Fourth Amendment of the United States Constitution protects against

unreasonable searches and seizures by government officials. U.S. CONST. amend. IV; see

Wiede, 214 S.W.3d at 24. To suppress evidence because of an alleged Fourth Amendment

violation, the defendant bears the initial burden of producing evidence that rebuts a

presumption of proper police conduct. Amador v. State, 221 S.W.3d 666, 672 (Tex. Crim.

App. 2007); see Young v. State, 283 S.W.3d 854, 872 (Tex. Crim. App. 2009). A defendant

satisfies this burden by establishing that a search or seizure occurred without a warrant.

Amador, 221 S.W.3d at 672. Once the defendant has made this showing, the burden of

proof shifts to the State, which is then required to establish that the search or seizure was

conducted pursuant to a warrant or was reasonable. Id. at 672-73; Torres v. State, 182

S.W.3d 899, 902 (Tex. Crim. App. 2005). Here, it is undisputed that the initial entry into




Weems v. State                                                                         Page 7
the motel room was without a warrant; therefore, we must examine whether the search

was reasonable.

       Whether a search is reasonable is a question of law that we review de novo. Kothe

v. State, 152 S.W.3d 54, 62 (Tex. Crim. App. 2004). Reasonableness is measured by

examining the totality of the circumstances. Id. at 63. It requires a balancing of the public

interest and the individual's right to be free from arbitrary detentions and intrusions. Id.

A search conducted without a warrant is per se unreasonable unless it falls within one of

the “specifically defined and well-established” exceptions to the warrant requirement.

McGee v. State, 105 S.W.3d 609, 615 (Tex. Crim. App. 2003); see Minnesota v. Dickerson, 508

U.S. 366, 372, 113 S. Ct. 2130, 2135, 124 L. Ed. 2d 334 (1993). These exceptions include “the

consent exception, the exigency exception, the automobile exception, the search-incident-

to-arrest exception, and the special-needs exception.” State v. Rodriguez, 521 S.W.3d 1, 10

(Tex. Crim. App. 2017) (internal citations omitted).

       Under the exigent-circumstances exception, a warrantless search is reasonable

when (1) an officer has probable cause and (2) an exigency exists that requires an

immediate entry. Gutierrez v. State, 221 S.W.3d 680, 685 (Tex. Crim. App. 2007). “Probable

cause exists when reasonably trustworthy circumstances within the knowledge of the

police officer on the scene would lead him to reasonably believe that evidence of a crime

will be found.” Turrubiate v. State, 399 S.W.3d 147, 151 (Tex. Crim. App. 2013) (citing




Weems v. State                                                                         Page 8
McNairy v. State, 835 S.W.2d 101, 106 (Tex. Crim. App. 1991)). The Gutierrez Court further

clarified the exigency exception as follows:

       We have identified three categories of exigent circumstances that justify a
       warrantless intrusion by police officers: 1) providing aid or assistance to
       persons whom law enforcement reasonably believes are in need of
       assistance; 2) protecting police officers from persons whom they reasonably
       believe to be present, armed, and dangerous; and 3) preventing the
       destruction of evidence or contraband. If the State does not adequately
       establish both probable cause and exigent circumstances, then a warrantless
       entry will not withstand judicial scrutiny.

Gutierrez, 221 S.W.3d at 685-86 (citations omitted).

       Moreover, even where probable cause and exigent circumstances do not exist, in

some cases, police may conduct a protective sweep of private property. Reasor v. State,

12 S.W.3d 813, 816 (Tex. Crim. App. 2000). Indeed,

       [u]nder the protective-sweep exception, when an officer arrives at a
       residence in response to a reported emergency and has an objectively
       reasonable belief, based on specific and articulable facts, that there may be
       a person inside the residence who poses a danger to the officer or to others
       in the area, the officer may perform a “protective sweep” of the residence
       without a warrant or consent.

Lipscomb v. State, 526 S.W.3d 646, 655 (Tex. App.—Houston [1st Dist.] 2017, pet. ref’d).

Furthermore, a protective sweep is not a full search of the premises; rather, it is a cursory

inspection of those space where a person might be hiding. Id. “It may last only long

enough to dispel the reasonable suspicion of danger and no longer than officers are

justified in remaining in the home.” Id.




Weems v. State                                                                         Page 9
       Nevertheless, when assessing a warrantless entry, whether justified as a protective

sweep or by exigent circumstances, an objective standard is utilized based on the facts

reasonably available to the officer at the time of the search. Cole v. State, 490 S.W.3d 918,

923 (Tex. Crim. App. 2016). The reviewing court must evaluate the circumstances on a

case-by-case basis, looking at the totality of the circumstances. Weems v. State, 493 S.W.3d

574, 578 (Tex. Crim. App. 2016). “A reasonable, articulable suspicion of danger may

justify a limited, cursory inspection to dispel the suspicion.” Pace v. State, 318 S.W.3d 526,

534 (Tex. App.—Beaumont 2010, no pet.).

C.     Discussion

       At the suppression hearing, Sergeant John Allovio of the Waco Police Department

testified that, at the time officers knocked on the door of the Motel 6 room, they knew

that a man had suffered a gunshot wound; witnesses had reported that the suspected

shooter and a female companion had fled the scene; they had descriptions of both of the

subjects, as well as the vehicle they were driving; a vehicle matching that description was

found at the Motel 6; and the motel clerk confirmed that the occupants of the vehicle had

checked into the motel. Sergeant Allovio recounted that, after speaking with the motel

clerk, officers were able to determine which room the occupants of the vehicle were in

and obtained a key for that room. However, rather than using the key to the room, the

officers knocked on the door. Sergeant Allovio stated that, after several minutes, a

female, Holly Taylor, opened the door to the room, which allowed him to see inside the


Weems v. State                                                                         Page 10
room and notice that Weems was in the back of the room. Both Taylor and Weems fit the

suspects’ descriptions provided the officers by witnesses at the scene of the shooting.

       Thereafter, officers requested that Taylor step outside the motel room. Sergeant

Allovio made sure that the door to the motel room stayed open because officers were

unsure if a gun was in the room. After being warned pursuant to Miranda2, Taylor

admitted that she, as well as Weems, was at the scene of the shooting, but she denied

hearing gunfire. Given the evidence above, officers had probable cause to believe that

evidence of a crime would be found in the motel room.

       Officers then entered the motel room, detained Weems, read Weems his Miranda

rights, and requested consent to search the motel room. Weems did not consent to a

search of the room, and Sergeant Allovio left to obtain a search warrant. Sergeant Allovio

instructed the officers that remained at the room “to secure the room so that no one could

enter and disturb the room until either a search warrant was granted or denied.”

       Later in the day, Sergeant Allovio obtained a warrant to search the motel room,

which resulted in the discovery of a Webley Mark IV .38 caliber pistol with two spent

shell casings and two live rounds inside, a digital scale that tested positive for the

presence of methamphetamine, clothing that matched the clothing description provided

by the victim, two cellular telephones, and $1,085 in cash. Sergeant Allovio denied that

the search warrant was based on the initial “search” of the room.


       2   See generally Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694 (1966).

Weems v. State                                                                                        Page 11
       The evidence presented at the suppression hearing, when viewed in the light most

favorable to the trial court’s ruling, supports the denial of Weems’s motion to suppress

based on either the exigent-circumstances or protective-sweep doctrines. See Gutierrez,

221 S.W.3d at 685-86; Lipscomb, 526 S.W.3d at 655; Pace, 318 S.W.3d at 534. Specifically,

once Taylor opened the door, officers were able to determine that the two occupants

matched the descriptions provided by witnesses. Furthermore, Taylor confirmed that

both she and Weems were present at the scene of the shooting. At this point, the officers

were justified in entering the motel room to do a protective sweep and secure the

premises, especially considering a gun was involved in the underlying incident for which

the officers were investigating. See Gutierrez, 221 S.W.3d at 685-86; Lipscomb, 526 S.W.3d

at 655; Pace, 318 S.W.3d at 534. The protective sweep was done for the purpose of the

safety of the officers and others. There was no indication at the suppression hearing that

any evidence was collected during this initial entry. In fact, once the protective sweep

was concluded, the officers secured the scene and properly obtained a search warrant. It

was only after execution of the warrant that the pistol, drug paraphernalia, and additional

evidence was found.

       Therefore, because the officers had the right to enter the motel room for the

purpose of the safety of the officers and others, there was no basis for granting Weems’s

motion to suppress. See Gutierrez, 221 S.W.3d at 685-86; Lipscomb, 526 S.W.3d at 655; Pace,

318 S.W.3d at 534. As such, we cannot conclude that the trial court abused its discretion


Weems v. State                                                                      Page 12
by denying Weems’s motion to suppress. See Crain, 315 S.W.3d at 48; Garcia-Cantu, 253

S.W.3d at 241; Guzman, 955 S.W.2d at 88-89. We overrule his second issue.

                                    III.    THE JURY CHARGE

       In his third issue, Weems argues that the trial court failed to properly instruct the

jury regarding the culpable mental states for aggravated assault by threat, and because

of this error, Weems contends that he suffered egregious harm. We disagree.

A.     Standard of Review

       In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.

App. 1996). If error is found, the appellate court must analyze that error for harm.

Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was properly

preserved by objection, reversal will be necessary if the error is not harmless. Almanza v.

State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was not preserved

at trial by a proper objection, as is the case here, a reversal will be granted only if the error

presents egregious harm, meaning Weems did not receive a fair and impartial trial. Id.

To obtain a reversal for jury-charge error, Weems must have suffered actual harm and

not just merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775 (Tex. Crim. App.

2012); Arline v. State, 721 S.W.2d 348, 352 (Tex. Crim. App. 1986).

       In determining whether charge error has resulted in egregious harm, we consider:

(1) the entire jury charge; (2) the state of the evidence, including the contested issues and


Weems v. State                                                                           Page 13
the weight of the probative evidence; (3) the final arguments of the parties; and (4) any

other relevant information revealed by the trial court as a whole. Allen v. State, 253 S.W.3d

260, 264 (Tex. Crim. App. 2008). 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).

B.     Discussion

       The culpable mental states in the penal code encompass three possible conduct

elements that may be involved in an offense: (1) nature of the conduct; (2) result of the

conduct; and (3) circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03

(West 2011); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). In other words,

some crimes are defined in terms of the result and some are defined in terms of conduct

or circumstances. When an offense is specifically delineated as to the type of conduct,

the trial court should limit the statutory definitions in the jury charge to the culpable

mental state required. See Price v. State, 457 S.W.3d 437, 441 (Tex. Crim. App. 2015); see

also Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994); Murray v. State, 804 S.W.2d

279, 281 (Tex. App.—Fort Worth 1991, pet. ref’d).         Weems alleges that the charge

provided result-oriented definitions for the culpable mental states for all of the

aggravated-assault allegations and failed to furnish the conduct-oriented definitions that

apply to assault by threat.


Weems v. State                                                                        Page 14
       Section 22.01(a)(2) of the Penal Code provides that: “A person commits an offense

if the person . . . intentionally or knowingly threatens another with imminent bodily injury,

including the person’s spouse . . . .” TEX. PENAL CODE ANN. § 22.01(a)(2) (West Supp.

2018) (emphasis added). Assault by threat “is conduct-oriented, focusing upon the act of

making a threat, regardless of any result that might cause.” Landrian v. State, 268 S.W.3d

532, 536 (Tex. Crim. App. 2008).

       The original indictment in this case charged Weems with, among other things,

aggravated assault with a deadly weapon causing bodily injury. Approximately two

months prior to trial, the State amended the indictment to allege the commission of

aggravated assault by different manner and means in two paragraphs.                The first

paragraph alleged that Weems “intentionally, knowingly, and recklessly cause[d] the

bodily injury to ERNEST BRADSHAW by shooting and/or striking” Bradshaw while

using or exhibiting a firearm, and the second paragraph alleged that Weems

“intentionally and knowingly threaten[ed]” Bradshaw “with imminent bodily injury by

shooting at or in the direction of” Bradshaw with a firearm.

       The abstract portion of the jury charge stated the following:

              Our law provides that a person commits the offense of Assault if the
       person intentionally, knowingly, or recklessly causes bodily injury to
       another; or intentionally or knowingly threatens another with imminent
       bodily injury.

              A person commits Aggravated Assault if the person commits an
       assault, as defined above, and uses or exhibits a deadly weapon during the
       commission of the assault.
Weems v. State                                                                        Page 15
With respect to the culpable mental states, the abstract portion of the jury charge

provided statutory definitions for intentional, knowing, and reckless conduct.

       However, in the application portion of the charge, the trial court correctly tailored

the culpable mental states to the charged offense of aggravated assault by threat. See TEX.

PENAL CODE ANN. § 22.01(a)(2) (“A person commits an offense if the person . . .

intentionally or knowingly threatens another with imminent bodily injury, including the

person’s spouse . . . .”); see also id. § 22.02. Specifically, the application portion of the jury

charge provided the following, in relevant part:

                                           COUNT I

              Now, if you find from the evidence beyond a reasonable doubt that
       on or about the 6th day of November, 2014, in McLennan County, Texas,
       the Defendant Ruthen James Weems, did then and there intentionally,
       knowingly, or recklessly cause bodily injury to Ernest Bradshaw by
       shooting and/or striking the said Ernest Bradshaw, and the Defendant did
       then and there use or exhibit a deadly weapon, to wit: a firearm, during the
       commission of said assault; or did then and there intentionally or knowingly
       threaten Ernest Bradshaw with imminent bodily injury by shooting at or in
       the direction of the said Ernest Bradshaw, and did then and there use or
       exhibit a deadly weapon, to wit: a firearm, during the commission of said
       assault, then you will find the Defendant guilty of Aggravated Assault as
       charged in the indictment.

                 ...

              Now, if you find from the evidence beyond a reasonable doubt that
       on or about the 6th day of November, 2014, in McLennan County, Texas,
       the Defendant, Ruthen James Weems, did then and there intentionally,
       knowingly, or recklessly cause bodily injury to Ernest Bradshaw by
       shooting and/striking the said Ernest Bradshaw, and the Defendant did
       then and there use or exhibit a deadly weapon, to wit: a firearm, during the
Weems v. State                                                                            Page 16
       commission of said assault; or did then and there intentionally or knowingly
       threaten Ernest Bradshaw with imminent bodily injury by shooting at or in
       the direction of the said Ernest Bradshaw, and did then and there use or
       exhibit a deadly weapon, to wit: a firearm, during the commission of said
       assault, but you further find from the evidence, or you have a reasonable
       doubt thereof, that at that time the Defendant was under attack or
       attempted attack from the complainant, Ernest Bradshaw, and that the
       Defendant reasonably believed, as viewed from his standpoint, that such
       deadly force as he used, if any, was immediately necessary to protect
       himself against such attack or attempted attack, then you would acquit the
       Defendant and say by your verdict “not guilty.”

(Emphasis added). As shown above, the intentional and knowing culpable mental states

in the application portion of the jury charge only applied to the conduct—the act of

making a threat. See Landrian, 268 S.W.3d at 536. The language contained in the

application portion of the charge as to the charge of aggravated assault by threat did not

apply to any other conduct or the result of the conduct and tracked the allegation made

in the indictment.

       The Court of Criminal Appeals has held that “[w]here the application paragraph

correctly instructs the jury, an error in the abstract instruction is not egregious.” Medina

v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999); see Plata v. State, 926 S.W.2d 300, 302-03

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

Crim. App. 1997) (holding that the inclusion of a merely superfluous abstraction never

produces reversible error in the court's charge because it has no effect on the jury's ability

to implement fairly and accurately the commands of the application paragraph or

paragraphs)      Abstract statements of the law that go beyond the allegations in the


Weems v. State                                                                         Page 17
indictment will not present reversible error when the trial court's application of the law

to the facts effectively restricts the jury's deliberation to the allegations in the indictment.

Grady v. State, 614 S.W.2d 830, 831 (Tex. Crim. App. 1981).

       Assuming, without deciding, that the abstract portion of the charge contained

error, we cannot conclude that the purported error was egregious because the application

paragraph correctly limited the culpable mental states as charged in the indictment. See

TEX. PENAL CODE ANN. § 22.01(a)(2); see also Medina, 7 S.W.3d at 640; Plata, 926 S.W.2d at

302-03; Grady, 614 S.W.2d at 831. Moreover, Weems concedes that two of the three

remaining factors—the state of the evidence and other relevant information—in the

egregious-harm analysis do not weigh in favor of a finding of egregious harm. And while

the parties did refer to the culpable mental states for the charged offense in closing

argument, the focus of the arguments was on Weems’s self-defense contention, and there

is nothing in the record demonstrating that the parties’ closing arguments misstated the

appropriate culpable mental states as they corresponded with each charged offense.

Therefore, given that none of the Allen factors weigh in favor of a finding of egregious

harm, we conclude that any error in the abstract portion of the charge was not calculated

to injure Weems's rights or deprive him of a fair and impartial trial. See Almanza, 686

S.W.2d at 171; see also Stuhler, 218 S.W.3d at 719; Sanchez, 209 S.W.3d at 121. Accordingly,

we overrule Weems’s third issue.




Weems v. State                                                                          Page 18
                                    IV.    CONCLUSION

       Having overruled all of Weems’s issues on appeal, we affirm the judgments of the

trial court.




                                               JOHN E. NEILL
                                               Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Neill
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed April 10, 2019
Do not publish
[CRPM]

*(Chief Justice Gray concurs in the Court’s judgment. A separate opinion will not issue.)




Weems v. State                                                                    Page 19
