                             Fourth Court of Appeals
                                    San Antonio, Texas
                                MEMORANDUM OPINION
                                       No. 04-15-00559-CR

                                      Tyler Keith ZIEGLER,
                                             Appellant

                                                  v.

                                       The STATE of Texas,
                                             Appellee

                    From the 399th Judicial District Court, Bexar County, Texas
                                  Trial Court No. 2014CR4425
                             Honorable Ray Olivarri, Judge Presiding

Opinion by:      Luz Elena D. Chapa, Justice

Sitting:         Patricia O. Alvarez, Justice
                 Luz Elena D. Chapa, Justice
                 Jason Pulliam, Justice

Delivered and Filed: October 5, 2016

AFFIRMED

           Tyler Keith Ziegler appeals his convictions for assault with a deadly weapon and

endangering a child. He argues the trial court erred by denying (1) his motion for relief regarding

the State’s alleged failure to disclose relevant evidence; (2) his motion for an instructed verdict on

the child-endangerment charge; and (3) his request for a mistake of fact instruction in the jury

charge. We affirm.
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                                           BACKGROUND

       Ziegler, his girlfriend Rachall, and their child C.Z. (born August 2013) were living with

Ziegler’s father Ronnie and stepmother Jennifer. One day when Ronnie and Jennifer were arguing,

Jennifer asked Ziegler to call the police. Ziegler said he would and Ronnie became angry. Ronnie

and Ziegler went outside and started physically fighting. During the fight, Rachall yelled at Ronnie

to stop, expressing her concern that Ronnie might kill Ziegler. Ziegler was taken to the hospital

that night for treatment of injuries sustained during the fight.

       The following morning after Ziegler returned home, Ziegler, Rachall, and C.Z. were in

their bedroom. Rachall told Ziegler she had talked to Jennifer about why she and Ronnie were

fighting.   During her conversation with Jennifer, Rachall learned Jennifer had a sexually

transmitted infection. Rachall became concerned because Ziegler told her that he and Jennifer had

slept together. Ziegler, who was lying on the bed, told Rachall to come to the bed and talk to him,

repeatedly asking her to share details of what Jennifer had told her. Rachall, who was holding

C.Z., refused because Ziegler was holding a long knife.

       Rachall testified she told Ziegler she did not want to fight about him sleeping with Jennifer.

She testified Ziegler threw the knife he was holding against the wall. When Ziegler left the bed to

grab the knife, Rachall and C.Z. went to the bed and lay down. According to Rachall, Ziegler

placed the knife on the dresser and then sat on a chair in the room. Rachall testified Ziegler had a

box cutter in hand, and when he reached over C.Z., the box cutter cut Rachall on her thigh. Rachall

said Ronnie and Jennifer were on the other side of the house during the incident.

       Ziegler testified in his defense. He stated that as he and Rachall were discussing Rachall’s

conversation with Jennifer, he heard Jennifer and Ronnie arguing in the living room. Ziegler said

he then heard Ronnie say, “Tyler, Tyler, is that you? Are you up? . . . Come on, let’s get back in

the backyard. Let’s . . . finish the fight.” Ziegler stated he pulled a box cutter out of his pocket

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because he was afraid Ronnie was going to hurt him. He explained that, while he was sitting in

the chair, he pushed off the bed, stumbled because of his injuries from the prior day’s fight with

Ronnie and the morphine the hospital had given him, and “that is when the razor blade scratched

[Rachall] or cut her on the leg.” Ziegler said he believed Ronnie was on his way to Ziegler’s

bedroom. He testified Ronnie had threatened to kill him during the prior day’s fight.

        A grand jury indicted Ziegler for assaulting Rachall with a deadly weapon and for placing

C.Z. “in imminent danger of bodily injury by swinging a box cutter at Rachall Kennedy while she

was holding the child” (formatting omitted). Ziegler pled not guilty to both charges, and the case

proceeded to a jury trial. The jury found Ziegler guilty of assaulting Rachall and endangering C.Z.

The jury assessed Ziegler’s punishment at six years’ confinement for assaulting Rachall and two

years’ confinement for endangering C.Z. Ziegler appeals.

                                           MOTION FOR RELIEF

        During the State’s cross-examination of Ziegler, the State asked him, “You were on the

ground and he [Ronnie] was pounding away and she [Rachall] yelled at him to stop, that he was

going to kill you, right?” Ziegler responded, “Yes.”

        After both parties rested their respective cases, Ziegler filed a motion for relief in which he

alleged, “Until such question, [Ziegler]’s attorney was never made aware of such a statement by

Rachall.” 1 The motion also alleged Ziegler served the State with a request for disclosure of all

exculpatory, impeachment, or mitigating evidence. In his motion for relief, Ziegler asked the trial

court to inspect all of the State’s notes “without limitation” and to “turn over” any exculpatory or

mitigating evidence. The trial court denied the motion. On appeal, Ziegler argues the trial court




1
 The motion was discussed during the charge conference. The State said Rachall’s statement was not recorded in a
police statement, and she made the statement during a pretrial interview with the prosecutor.

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erred because the State’s failure to disclose its knowledge about Rachall’s statement violated

Brady v. Maryland, 373 U.S. 83 (1963), and article 39.14 of the Texas Code of Criminal Procedure.

       Under Brady, the State has a constitutional duty to disclose material, exculpatory evidence

to a defendant. Brady, 373 U.S. at 87. Brady applies to situations in which a defendant discovers

after trial that there was information known to the prosecution but unknown to the defense. United

States v. Agurs, 427 U.S. 97, 103 (1976), modified on other grounds by United States v. Bagley,

473 U.S. 667 (1985); Pena v. State, 353 S.W.3d 797, 810 (Tex. Crim. App. 2011). However, the

State does not have a constitutional duty to disclose evidence “if the defendant was actually aware

of the exculpatory evidence or could have accessed it from other sources.” Pena, 353 S.W.3d at

810. Here, when asked whether Rachall yelled at Ronnie to “stop, that he was going to kill you,”

Ziegler answered “Yes.” Ziegler clearly was present when Rachall made the statement he

complains the State failed to disclose. Because Ziegler was aware of Rachall’s statement before

trial, the State did not have a duty under Brady to disclose what she told the State about what she

had said to Ronnie. See id.

       Under Code of Criminal Procedure article 39.14, the State must “disclose to the defendant

any exculpatory, impeachment, or mitigating document, item, or information in the possession,

custody, or control of the state that tends to negate the guilt of the defendant or would tend to

reduce the punishment for the offense charged.” TEX. CODE CRIM. PROC. ANN. art. 39.14(h) (West

Supp. 2016). Even if the State failed to comply with article 39.14(h)’s requirements, and the trial

court erred by denying Ziegler’s motion for relief, we must disregard the error unless it affected

Ziegler’s substantial rights. See TEX. R. APP. P. 44.2(b). An error affects a defendant’s substantial

rights when the error has a substantial and injurious effect or influence on the jury’s verdict. King

v. State, 953 S.W.2d 266, 271 (Tex. Crim. App. 1997). “A criminal conviction should not be

overturned for non-constitutional error if the appellate court, after examining the record as whole,

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has fair assurance that the error did not influence the jury, or had but a slight effect.” Johnson v.

State, 967 S.W.2d 410, 417 (Tex. Crim. App. 1998). Conversely, a conviction must be reversed

for such error if the reviewing court has “grave doubt that the result of the trial was free from the

substantial effect of the error.” Barshaw v. State, 342 S.W.3d 91, 94 (Tex. Crim. App. 2011).

“Grave doubt” means that “in the judge’s mind, the matter is so evenly balanced that he feels

himself in virtual equipoise as to the harmlessness of the error.” Id.

           Ziegler argues Rachall’s statement was “highly beneficial” to his case and it supported his

theory that he grabbed the box cutter because he was afraid of Ronnie. However, Rachall’s

statement was admitted into evidence through Ziegler’s own testimony. The jury therefore heard

the evidence Ziegler claims was “highly beneficial” to his case. In closing arguments, Ziegler

emphasized his testimony about Rachall’s statement and relied on Rachall’s statement to support

his theory that he was afraid of Ronnie. On the other hand, the jury also heard Rachall’s testimony

that Ronnie and Jennifer were on the other side of the house when Ziegler cut her. The jury, in

finding Ziegler guilty, believed Rachall’s testimony that Ziegler purposefully cut her with a box

cutter. Having reviewed the entire record and deferring to the jury’s credibility determinations,

we hold the trial court’s denial of Ziegler’s motion for relief did not have a substantial and injurious

effect or influence on the jury’s verdict. See King, 953 S.W.2d at 271.

                                     MOTION FOR INSTRUCTED VERDICT

           Ziegler argues the trial court erred by denying his motion for instructed verdict on the

charge of endangering a child. The indictment alleged Ziegler intentionally, knowingly, and

recklessly engaged in conduct that placed C.Z. in imminent danger of bodily injury by swinging a

box cutter at Rachall “while she was holding the child.” 2 On appeal, Ziegler contends there is no



2
    The jury charge tracked the same language.

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evidence that he placed C.Z. in imminent danger of bodily injury by swinging a box cutter at

Rachall while she was holding the child because there is no evidence Rachall was holding C.Z.

       The standard of review applicable to a motion for instructed verdict is the same used under

a legal sufficiency review. Hines v. State, 383 S.W.3d 615, 623 (Tex. App.—San Antonio 2012,

pet. ref’d). Under the legal sufficiency standard, we must review all the evidence in the light most

favorable to the verdict to decide whether a rational jury could have found the essential elements

of the offense beyond a reasonable doubt. Id. The jury is the exclusive judge of the credibility of

the witnesses and the weight to be given to testimony, and we must defer to its determinations.

Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010). The jury may choose to accept or

reject all or part of the testimony, and we presume the jury resolved all conflicts in the evidence in

favor of the verdict. Merritt v. State, 368 S.W.3d 516, 525-26 (Tex. Crim. App. 2012). After

reviewing the evidence in this light, “we will uphold the verdict unless a rational factfinder must

have had reasonable doubt as to any essential element.” Laster v. State, 275 S.W.3d 512, 518

(Tex. Crim. App. 2009).

       The sufficiency of the evidence is measured by reference to the elements of the offense as

defined by a hypothetically correct jury charge for the case. Byrd v. State, 336 S.W.3d 242, 246

(Tex. Crim. App. 2011); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). A

hypothetically correct jury charge need not incorporate allegations that give rise to immaterial

variances. Byrd, 336 S.W.3d at 248. A variance occurs when there is a “discrepancy between the

allegations in the indictment and the proof offered at trial.” Id. at 246. A variance between the

wording of an indictment and the evidence presented at trial is fatal to the State’s case only if it is

material and prejudices the defendant’s substantial rights. Gollihar v. State, 46 S.W.3d 243, 257

(Tex. Crim. App. 2001). “When reviewing such a variance, we must determine whether the

indictment, as written, informed the defendant of the charge against him sufficiently to allow him

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to prepare an adequate defense at trial, and whether prosecution under the deficiently drafted

indictment would subject the defendant to the risk of being prosecuted later for the same crime.”

Id. Allegations giving rise to immaterial variances between the indictment and the proof may be

disregarded in the hypothetically correct charge. Id.

       “[A] hypothetically correct jury charge encompasses statutory elements of the offense as

modified by the State’s indictment.” Hinojosa v. State, 433 S.W.3d 742, 759 (Tex. App.—San

Antonio 2014, pet. ref’d).    In this case, a “person commits an offense if he intentionally,

knowingly, recklessly, or with criminal negligence, by act or omission, engages in conduct that

places a child younger than 15 years in imminent danger of death, bodily injury, or physical or

mental impairment.” TEX. PENAL CODE ANN. § 22.041(c) (West 2011). “‘Bodily injury’ means

physical pain, illness, or any impairment of physical condition.” Id. § 1.07(8) (West Supp. 2016).

“Imminent” means “ready to take place, near at hand, impending, hanging threateningly over one’s

head, menacingly near.” See Devine v. State, 786 S.W.2d 268, 270 (Tex. Crim. App. 1989)

(construing “imminent” bodily injury in § 29.02(a)(2) of the Penal Code “to require a present, not

a future threat”). The offense of endangering a child requires that the child be in imminent danger,

but does not require a child to be in any particular physical location. See TEX. PENAL CODE ANN.

§ 22.041(c).

       Rachall testified she, Ziegler, and C.Z. were in the bedroom. She stated she was standing

and holding C.Z. before Ziegler threw the long knife against the wall. Rachall testified she then

“laid my son on the bed and laid beside him.” She stated she was lying against the wall and the

baby was asleep on the “open side of the bed” between Rachall and Ziegler. Rachall testified

Ziegler had to reach over the child with the box cutter in order to cut her. Rachall was asked on

cross-examination whether she was holding the child and she responded she was “lying next to

him.” Although Ziegler contradicted her testimony and stated the child was up against the wall

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during the incident, we presume the jury resolved this conflict in the evidence in the State’s favor.

See Merritt, 368 S.W.3d at 525-26. We hold a rational jury could have found—regardless of

whether Rachall was holding C.Z.—that Ziegler placed C.Z. in imminent danger when Ziegler

reached over C.Z. to cut Rachall with the box cutter. Any variance between Rachall holding C.Z.

and not holding C.Z. gives rise to an immaterial variance, which we may disregard. See Gollihar,

46 S.W.3d at 257. Therefore, the trial court did not err by denying Ziegler’s motion for instructed

verdict.

                                 MISTAKE OF FACT INSTRUCTION

       Ziegler asserts the trial court erred by denying his request for a mistake of fact instruction.

A defendant is entitled to a “requested instruction on every defensive issue raised by the evidence

without regard to its source or strength, even if the evidence is contradicted or is not credible.”

Krajcovic v. State, 393 S.W.3d 282, 286 (Tex. Crim. App. 2013). “While the evidence may be

weak or contradicted, there must be at least some evidence to support the defense as a rational

alternative to the defendant’s criminal liability.” Id. This rule is designed to ensure that the jury,

not the judge, will decide the relative credibility of the evidence. Miller v. State, 815 S.W.2d 582,

585 (Tex. Crim. App. 1991).

       Mistake of fact is a defense to prosecution. TEX. PENAL CODE ANN. § 8.02(a) (West 2011).

A mistake of fact occurs when “the actor through mistake formed a reasonable belief about a matter

of fact if his mistaken belief negated the kind of culpability required for commission of the

offense.” Id. The Penal Code defines a “reasonable belief” as “a belief that would be held by an

ordinary and prudent man in the same circumstances as the actor.” Id. § 1.07(a)(42) (West Supp.

2016). When an accused presents evidence to raise the issue of mistaken belief as to a culpable

mental state element of the offense, he is entitled to a defensive instruction on mistake of fact.

Granger v. State, 3 S.W.3d 36, 41 (Tex. Crim. App. 1999). Therefore, the issue before the trial

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court was whether Ziegler’s purported belief, if accepted as true, negated the culpability required

for this offense.

        Ziegler was charged with “intentionally, knowingly or recklessly stabbing” Rachall, and

“intentionally, knowingly, or recklessly engag[ing] in conduct” that placed C.Z. in imminent

danger of bodily injury. Ziegler contends his testimony raised a mistake of fact defense because

he was reasonably mistaken about whether Ronnie was on his way to Ziegler’s bedroom to start

another fight. Even if Ziegler was mistaken about where Ronnie was in the house, this mistaken

belief would not negate the kind of culpability required for either of the two offenses. Both

offenses required evidence that Ziegler act “intentionally, knowingly, or recklessly.” The evidence

supports only two accounts of the incident. Rachall’s account was that Ziegler purposefully took

a box cutter and cut her. Ziegler’s account was that he stumbled and accidentally cut Rachall with

the box cutter. If the jury believed Ziegler purposefully cut Rachall, thereby placing C.Z. in

imminent danger, then Ziegler’s mistaken belief that Ronnie was coming to start a fight with him

would not negate the culpable mental state for either offense. If the jury believed Ziegler

accidentally cut Rachall, then Ziegler would lack the culpable mental state for both offenses

regardless of whether Ronnie was coming to start a fight or was on the other side of the house.

Because no evidence supports that Ziegler’s mistake of fact negated the culpable mental state

required for both offenses, the trial court did not err by denying Ziegler’s request for a mistake of

fact instruction. See id.

                                           CONCLUSION

        We overrule Ziegler’s issues on appeal and affirm the trial court’s judgments.

                                                  Luz Elena D. Chapa, Justice

DO NOT PUBLISH



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