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


                  No. 06-13-00034-CR



             WILLIE RUDD, JR., Appellant

                            V.

           THE STATE OF TEXAS, Appellee



         On Appeal from the 71st District Court
               Harrison County, Texas
              Trial Court No. 10-0450X




       Before Morriss, C.J., Carter and Moseley, JJ.
        Memorandum Opinion by Justice Moseley
                        MEMORANDUM OPINION
         Convicted by a jury of the burglary of a habitation and sentenced to seventy-five years’

imprisonment and to pay a $10,000.00 fine, Willie Rudd, Jr., has filed his appeal. Rudd argues

that the jury’s verdict can only support a conviction for a second degree offense (in contrast with

the first degree felony punishment that he alleges that he “incorrectly received”) and that the trial

court erred in failing to suppress the results of a comparative DNA test. 1 We find that the jury

charge establishes that Rudd was convicted of a first degree felony and conclude that Rudd has

not preserved his last point of error. We affirm the trial court’s judgment.

I.       Factual Background

         In the very early morning of June 25, 2010, Fred Weathersby, III, was awakened by the

sound of his dogs’ barking, and then he heard them “yelping, like someone was kicking them.”

Weathersby soon heard “a real bad boom,” as the front door “was forced open.” Weathersby

grabbed his pistol just as his bedroom door was kicked and “went flying open,” whereupon he

“started firing” as the intruder was “trying to find the light switch.” There was “some kind of

movement” and “rumbling” “going on,” and the intruder fired two bullets into the mattress

where Weatherby had just been reposing. The intruder, then still just outside the bedroom,

yelled out, “Man, what’s going on? What’s going on?” Weathersby testified that the intruder

then shot toward him “three times over [his] head,” prompting Weathersby to return fire once

again.    Weathersby testified that he had shot seventeen bullets from his 40-caliber semi-

automatic pistol. During the exchange of gunfire, Weathersby heard the intruder exclaim, “I’m

1
 The thousands of genes that make up each chromosome of living beings are composed of deoxyribonucleic acid
(DNA). The arrangement of DNA is unique to each living thing.

                                                    2
hit.” Weathersby did not hear further from the intruder but reloaded his pistol. Afraid the

intruder might still be in the house somewhere or lying in wait for him, Weathersby removed the

air-conditioner unit from his bedroom window and crawled out. He then called relatives and the

emergency 9-1-1 number on his cell phone.

       The intruder had disappeared by the time officers arrived at the scene. Harrison County

Sheriff’s Department Investigator Cindy Dowler Black testified that the sheriff’s department

dispatcher “alerted the hospitals around” concerning the situation and received a telephone call

from “Willis Knighton [hospital] in Shreveport that there was a gunshot victim there.” Black

arrived at the hospital, saw Rudd, and gathered his bloody hospital gown. Rudd’s gown was sent

to the Tarrant County Medical Examiner’s Office for testing along with a “swab taken from

blood on the floor of the bedroom of the residence.”         Forensic DNA scientist, Carolyn

Vanwinkle, testified that “the [DNA] profiles from the stain from the bedroom was [sic] the

same as the stain from the [hospital] gown” worn by Rudd when being treated for gunshot

wounds at the Shreveport hospital.

II.    The Jury Convicted Rudd of a First Degree Felony

       Burglary of a habitation is a second degree offense unless the defendant entered the

habitation with intent to commit a felony other than theft. TEX. PENAL CODE ANN. § 30.02(c),

(d) (West 2011). Count I, Paragraph A of the State’s indictment alleged that Rudd “intentionally

or knowingly enter[ed] a habitation, without the effective consent of Fred Weathersby, the owner

thereof, and attempted to commit or committed the felony offense of Aggravated Assault.”

Count I, Paragraph B alleged that Rudd entered the habitation without Weathersby’s consent

                                               3
“with intent to commit the felony offense of aggravated assault.” Assault is classified as a

misdemeanor offense unless the act involves circumstances not present in this case. TEX. PENAL

CODE ANN. § 22.01(b), (c) (West 2011). Aggravated assault is a felony offense. TEX. PENAL

CODE ANN. § 22.02(b) (West 2011). Because both paragraphs of the State’s indictment alleged

either that Rudd entered with the intent to commit aggravated assault, or did actually attempt to

commit or committed an aggravated assault, the State’s indictment alleged that Rudd committed

a first degree felony offense. 2

            Rudd admits that “[t]he punishment charge included a first degree felony punishment

range and Rudd was convicted of a first degree felony.” Rudd, however, complains that “[t]he

problem comes with the guilt/innocence charge” because the charge contained an instruction that

a person commits burglary if “he enters a habitation and commits or attempts to commit an

assault.” Rudd argues that “the jury’s finding of simple assault falls short of the felony finding

required to support a first degree felony conviction.” In an attempt to secure a de novo review of

his point of error, Rudd classifies the error in the instruction as an error that produced a void or

illegal sentence. In contrast with Rudd, the State takes the position that because Rudd was both

charged with and convicted of a first degree felony and since the punishment charge correctly

described the range of penalty which would comport with a first degree felony, then the nature of

the issue raised by Rudd would constitute a complaint that there was error in the jury charge.

            Our review of alleged jury charge error involves a two-step process. Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994); see Sakil v. State, 287 S.W.3d 23, 25–26 (Tex. Crim.


2
    The jury found Rudd guilty “as charged in the indictment.”
                                                           4
App. 2009); Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Initially we determine

whether an error occurred and then “determine whether sufficient harm resulted from the error to

require reversal.” Abdnor, 871 S.W.2d at 731–32; Almanza v. State, 686 S.W.2d 157, 171 (Tex.

Crim. App. 1984) (op. on reh’g), reaff’d by Middleton v. State, 125 S.W.3d 450, 453 (Tex. Crim.

App. 2003).

       The level of harm an appellant must demonstrate as having resulted from the erroneous

jury instruction depends on whether the appellant properly objected to the error. Abdnor, 871

S.W.2d at 732. When the defendant fails to object to the charge, we will not reverse for jury-

charge error unless the record shows “egregious harm” to the defendant. Ngo, 175 S.W.3d at

743–44 (citing Almanza, 686 S.W.2d at 171); see also Bluitt v. State, 137 S.W.3d 51, 53 (Tex.

Crim. App. 2004). In determining whether the error caused egregious harm, we must decide

whether the error created such harm that the appellant did not have a fair and impartial trial.

Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Almanza, 686 S.W.2d at 171;

Boones v. State, 170 S.W.3d 653, 659 (Tex. App.—Texarkana 2005, no pet.).

       The jury charge read as follows:

               A person commits the offense of burglary if, without the effective consent
       of the owner, he enters a habitation and commits or attempts to commit an assault,
       or without the effective consent of the owner, he enters a habitation with intent to
       commit an assault.

              ....

              A person commits assault if the person intentionally, knowingly, or
       recklessly causes bodily injury to another, including the person’s spouse.




                                                5
                A person commits aggravated assault if the person commits an assault, as
        defined above, and causes serious bodily injury to another, including the person’s
        spouse.

                 ....

               “Serious bodily injury” means bodily injury that creates a substantial risk
        of death or that causes death, serious permanent disfigurement, or protracted loss
        or impairment of the function of any bodily member or organ.

                 ....

                Now, if you find from the evidence beyond a reasonable doubt that on or
        about the 25th day of June, 2010, in Harrison County, Texas, the defendant,
        Willie James Rudd, Jr., did, without the effective consent of Fred Weathersby, the
        owner thereof, enter a habitation and commit or attempt to commit aggravated
        assault, or, that he did then and there, with intent to commit the felony offense of
        aggravated assault, enter a habitation without the effective consent of Fred
        Weathersby, the owner thereof, then you will find the defendant guilty of the
        offense of burglary of a habitation as charged in the indictment.
                Unless you so find from the evidence beyond a reasonable doubt, or if you
        have a reasonable doubt thereof, you will acquit the defendant and say by your
        verdict “Not Guilty.”[3]

        “The abstract or definitional portions of a jury charge are designed to help the jury

understand the meaning of concepts and terms used in the charge’s application portions.” Martin

v. State, 252 S.W.3d 809, 814 (Tex. App.—Texarkana 2008, pet. dism’d) (citing Caldwell v.

State, 971 S.W.2d 663, 667 (Tex. App.—Dallas 1998, pet. ref’d). A jury is only “authorized to

convict based on the application portion of a charge; an abstract charge or a legal theory does not

bring that theory before the jury unless the theory is applied to the facts.” Id. (citing McFarland

v. State, 928 S.W.2d 482, 515 (Tex. Crim. App. 1996), overruled on other grounds, Mosley v.
3
 The court’s charge failed to instruct the jury that a person commits assault if he intentionally or knowingly
threatens another with imminent bodily injury. TEX. PENAL CODE ANN. § 22.01(a)(2) (West 2011). It also did not
include that a person commits aggravated assault if he uses or exhibits a deadly weapon during the commission of an
assault. TEX. PENAL CODE ANN. § 22.02(a)(2) (West 2011). There is no complaint about the court’s omission of
these instructions. There is also no complaint regarding the legal sufficiency of the evidence.
                                                        6
State, 983 S.W.2d 249, 263 (Tex. Crim. App. 1998); Campbell v. State, 910 S.W.2d 475, 477

(Tex. Crim. App. 1995)).

            “A charge is adequate if it contains an application paragraph that authorizes a conviction

under conditions specified by other paragraphs of the charge to which the application paragraph

necessarily and unambiguously refers . . . .” Id. (citing 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)). “If the application paragraph of a jury charge does not incorporate a theory recited

only in the abstract portion of the charge, a jury cannot convict on that theory.” Id. (citing

Hughes v. State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994); Mallard v. State, 162 S.W.3d

325, 334 (Tex. App.—Fort Worth 2005, pet. ref’d)). Here, the trial court’s charge first informed

the jury that “[a] person commits the offense of burglary” of a habitation if he enters the

habitation “and commits or attempts to commit an assault, or . . . with intent to commit an

assault” and defined the term assault. However, the charge did not stop with that definition; it

also defined aggravated assault, and the application portion of the charge limited the jury’s

ability to find Rudd guilty by first requiring a finding related to aggravated assault. 4 We have

previously held that even where the “abstract portion of the charge is questionable,” there is no

jury charge error when “the application portion essentially tracks the indictment.” Id. at 815.

            Further, because there was no objection to the jury charge below, Rudd was required to

show that any harm suffered by him due to an error in the charge was egregious. In Martin, we

also found that “[e]ven if there were error, there was no harm” because “[a]n erroneous


4
    There was no submission of a lesser-included offense based on the idea that Rudd only committed simple assault.
                                                           7
definitional section of a jury charge can be ‘saved’ by a proper application section.” Id. Here,

because the jury was only authorized to convict Rudd on the application paragraph, Rudd cannot

demonstrate, as he argues, that “the burglary instruction submitted . . . supported only a second

degree felony conviction.” “Where 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 Grady v. State, 614 S.W.2d 830, 831 (Tex. Crim. App. [Panel Op.] 1981).

        We overrule Rudd’s first point of error.

        Rudd’s second point of error, claiming that he incorrectly received a first degree

punishment, is reliant upon the success of his argument raised in his first point of error: that he

was “found guilty of . . . a second degree felony.” Because we have already concluded that Rudd

was convicted of a first degree felony, as alleged in the indictment and as set forth in the court’s

application paragraph of the jury charge, that determination effectively also renders the second

point of error to have no basis. Therefore, we overrule Rudd’s second point of error.

III.    Rudd Failed to Introduce the Warrant into the Record

        In addition to the bloody gown worn by Rudd, there was testimony that an oral swab was

taken from him at the hospital. When Black was asked whether Rudd consented to the buccal

swab, Rudd’s counsel objected that “[w]hether he consented -- whether it was done by a warrant

has no relevance to this proceeding. The fact that they got it obtained from a warrant is not being

contested in this trial.”




                                                   8
            Outside of the presence of the jury, the following exchange occurred:

                             [COUNSEL FOR RUDD]: . . . . Judge, we would object to the
            introduction into evidence of the buccal swab that was taken from Mr. Rudd.
            Apparently, on October 25th, 2010, it was done pursuant to a search warrant.
                             We object. The search warrant didn’t contain probable cause, and
            I believe that the Court can determine that from the four corners of the document.

                              THE COURT: I haven’t seen the document, so . . .

                           [STATE]: Judge, for purposes of the record, this warrant was
            executed by a sitting district Judge. It’s an evidentiary warrant. There is a proper
            return.

                            THE COURT: Based on the four corners of the document, I will
            find that the evidence was sufficient.

                              [STATE]: Thank you, Judge.

                          [COUNSEL FOR RUDD]: Just so the record’s clear, you are
            overruling my objection, right, Judge?

                              THE COURT: I’m overruling -- I’m overruling your objection.

            During Black’s direct-examination, the State attempted to offer the warrant into evidence,

but Rudd’s counsel objected to its introduction, as shown in this exchange:

                     Q      [STATE] Now, I previously marked this as State’s Exhibit No.
            14,[5] Investigator.

                           [COUNSEL FOR RUDD]: Subject to the same -- to the Court’s
            previous ruling.

                              THE COURT: It’s introduced.
                              Or did you offer it or --

                              [STATE]: I had not offered it as of yet, Your Honor.



5
    The exhibit index refers to this as the “Search warrant for DNA (not offered).”
                                                             9
              Q      [STATE] I’m handing this to you. Can you see if you can identify
       what that document is without saying what it is?

                      [COUNSEL FOR RUDD]: Judge, can we approach?

                      (At the bench, on the record.)

                      [COUNSEL FOR RUDD]: To introduce evidence, the fact there
       was a search warrant, they cannot introduce that into evidence. Probable cause is
       not an issue now before this jury as to that search warrant.

                     [STATE]: Are you not going to argue about the warrant was
       improperly done?

                      [COUNSEL FOR RUDD]: I made my objection to say warrant. I
       am not going anywhere into warrant. She took samples from it. She already said
       that we don’t need to go there.

                      [STATE]: I understand, Judge. It is a government document,
       exception to hearsay.

                      [COUNSEL FOR RUDD]: He has ruled on the warrant.

                      [STATE]: I understand that. But he has not ruled on yours yet.

                      [COUNSEL FOR RUDD]: On my what?

                      [STATE]:     He has not ruled on whether or not it comes into
       evidence.

                       [COUNSEL FOR RUDD]: I will say same objections that are
       subject to the Court’s previous ruling. It is admissible because it is -- the warrant
       is valid for probable cause.

                      [STATE]: Okay.

              (End of bench conference.)

The warrant was not introduced into evidence.




                                                10
            In his last point of error, Rudd argues that the “trial court should have granted Rudd’s

motion to suppress buccal swabs, used to perform comparative DNA tests, because the search

warrant and supporting affidavit are not in the appellate record.” Rudd argues that we should

review whether the admission of the buccal swab by the trial court was error. Rudd further

maintains that we should conclude that error resulted because no search warrant was admitted

into evidence and, therefore, is not included in our appellate record. In doing so, Rudd cites the

general rule that it is the State’s burden to either present a search warrant or provide an exception

to the requirement that a warrant be obtained. However, the record demonstrates that the court

was presented with the search warrant in this case. In fact, the State attempted to introduce the

warrant, but Rudd’s counsel objected to its introduction and, as a result of that objection, the

warrant was never admitted.

            The State contends that counsel’s actions amounted to invited error. An appellant cannot

make ‘“an appellate error of an action [he] induced.’” Vennus v. State, 282 S.W.3d 70, 74 (Tex.

Crim. App. 2009) (finding invited error where defense prevented State from fully presenting

evidence of probable cause by objecting during suppression hearing) (quoting Druery v. State,

225 S.W.3d 491, 505–06 (Tex. Crim. App. 2007)).

            “Once the State shows that a valid search warrant is in existence at the time of the search

the burden of going forward is then on a defendant to prove that the affidavit is insufficient as a

matter of law and to see that the search warrant and the affidavit[6] are included in the record on

appeal.” Ortega v. State, 464 S.W.2d 876, 877 (Tex. Crim. App. 1971); see Underwood v. State,


6
    There was no complaint about the supporting affidavit, assuming there was one, at trial.
                                                            11
967 S.W.2d 925, 927–28 (Tex. App.—Beaumont 1998, pet. ref’d); Davidson v. State, 249

S.W.3d 709, 717–18 (Tex. App.—Austin 2008, pet. ref’d) (it is defendant’s burden to establish

warrant’s invalidity). Because the search warrant was neither introduced into evidence nor

presented in a bill of review, Rudd’s complaint that the trial court erred in overruling his

objection to the evidence of the buccal swab is not properly presented for our review. See

Bogany v. State, Nos. 14-10-00138-CR, 14-10-00139-CR, 14-10-00140-CR, 14-10-00141-CR,

14-10-00142-CR, 14-10-00143-CR, 14-10-00145-CR, 14-10-00146-CR, 2011 WL 704359, at *1

(Tex. App.—Houston [14th Dist.] Mar. 1, 2011, pet. ref’d) (mem. op., not designated for

publication) (per curiam). 7

        We overrule Rudd’s last point of error. 8

IV.     Conclusion

        We affirm the trial court’s judgment.



                                                   Bailey C. Moseley
                                                   Justice

Date Submitted:          October 25, 2013
Date Decided:            October 28, 2013

Do Not Publish




7
 Although this unpublished case has no precedential value, we may take guidance from it “as an aid in developing
reasoning that may be employed.” Carrillo v. State, 98 S.W.3d 789, 794 (Tex. App.—Amarillo 2003, pet. ref’d).
8
We also note that no harm can be shown given the independent DNA evidence from the hospital gown linking
Rudd to the crime scene.
                                                      12
