Opinion filed June 11, 2015




                                      In The


        Eleventh Court of Appeals
                                    __________

                              No. 11-13-00124-CR
                                    __________

                    CHRISTOPHER MCGEE, Appellant
                                 V.
                     THE STATE OF TEXAS, Appellee

                On Appeal from the Criminal District Court No. 7
                             Dallas County, Texas
                     Trial Court Cause No. F-1259266-Y

                      MEMORANDUM OPINION
      Christopher McGee was indicted for aggravated robbery. The jury convicted
him of the lesser included offense of robbery. Appellant pleaded “not true” to a prior
conviction alleged for enhancement purposes. The jury found the enhancement
allegation to be “true” and assessed his punishment at confinement for forty-five
years in the Institutional Division of the Texas Department of Criminal Justice and
a fine of $5,500. In three issues on appeal, Appellant challenges the sufficiency of
the evidence and alleges two instances of jury charge error. We affirm.
                                 Background Facts
      David Rosen, the manager of a Family Dollar store, testified that on
August 18, 2012, he was talking with his assistant manager when they saw a man
coming down an aisle with his pants full of merchandise. Rosen attempted to stop
the man to retrieve the merchandise. Rosen stepped in front of him and said, “Just
give me the merchandise back and you’re on your way.” Appellant refused to give
the merchandise back, and Rosen testified that Appellant said, “Don’t touch me.
Don’t mess with me.” Rosen then said that Appellant pushed his way toward the
exit door. Rosen attempted to grab Appellant’s shirt and hold him back to retrieve
the merchandise. A surveillance video depicted Appellant leaving the store with the
items of merchandise in his pockets.
      Rosen followed Appellant outside the store and around the building. Rosen
testified that Appellant “lifted up his shirt and showed [Rosen] a knife.” Rosen said
that it looked like a steak knife and that “it was stuffed in the front of his pants.”
Rosen then backed away as he “was afraid [Appellant] might do something” like
“stab me and hurt me.”
      Rosen testified that he called 911 and watched Appellant walk away from the
store. Rosen gave a description of Appellant to the dispatcher and the direction that
Appellant was walking. Officer Patricio Zamarripa of the Dallas Police Department
stopped to speak with Rosen about Appellant shortly after Appellant walked away.
Officer Zamarripa was able to locate Appellate a short distance from the store.
Officer Zamarripa arrested Appellant and returned with him to the store where Rosen
identified Appellant.
                                       Analysis
      In his first issue, Appellant challenges the legal sufficiency of the evidence
supporting his conviction for robbery. We review a sufficiency of the evidence
issue, regardless of whether it is denominated as a legal or factual claim, under the
                                          2
standard of review set forth in Jackson v. Virginia, 443 U.S. 307 (1979). Brooks v.
State, 323 S.W.3d 893, 912 (Tex. Crim. App. 2010); Polk v. State, 337 S.W.3d 286,
288–89 (Tex. App.—Eastland 2010, pet. ref’d). Under the Jackson standard, we
review all of the evidence in the light most favorable to the verdict and determine
whether any rational trier of fact could have found the elements of the offense
beyond a reasonable doubt. Jackson, 443 U.S. at 319; Isassi v. State, 330 S.W.3d
633, 638 (Tex. Crim. App. 2010). When conducting a sufficiency review, we
consider all the evidence admitted at trial, including pieces of evidence that may
have been improperly admitted. Winfrey v. State, 393 S.W.3d 763, 767 (Tex. Crim.
App. 2013); Clayton v. State, 235 S.W.3d 772, 778 (Tex. Crim. App. 2007).
       In conducting a sufficiency review, we defer to the factfinder’s role as the sole
judge of the witnesses’ credibility and the weight their testimony is to be afforded.
Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s duty to
resolve conflicts in the testimony, to weigh the evidence, and to draw reasonable
inferences from basic facts to ultimate facts. Jackson, 443 U.S. at 319; Clayton, 235
S.W.3d at 778. When the record supports conflicting inferences, we presume that
the factfinder resolved the conflicts in favor of the prosecution and defer to that
determination. Jackson, 443 U.S. at 326; Clayton, 235 S.W.3d at 778.
       “A person commits robbery if, in the course of committing theft, he
intentionally or knowingly threatens or places another in fear of imminent bodily
injury or death.” Boston v. State, 410 S.W.3d 321, 322 n.1 (Tex. Crim. App. 2013);
see TEX. PENAL CODE ANN. § 29.02(a)(2) (West 2011).1                       “A person commits
aggravated robbery if he commits robbery and uses or exhibits a deadly weapon.”
Boston, 410 S.W.3d at 322 n.1; see PENAL § 29.03(a)(2). Thus, the only additional
element that elevated the charged offense to aggravated robbery was the use or


       1
          A person may also commit robbery by intentionally, knowingly, or recklessly causing bodily
injury to another while in the course of committing theft. PENAL § 29.02(a)(1).
                                                     3
exhibition of a deadly weapon because this is the only difference between the offense
that was charged and the lesser included offense of robbery as set out in the court’s
charge.
      The application paragraph in the court’s charge was premised on the
allegation that Appellant intentionally or knowingly threatened or placed Rosen in
fear of imminent bodily injury or death. Appellant asserts that the evidence was
insufficient to establish that he threatened or placed Rosen in fear of imminent bodily
injury or death.    He contends that, “[w]hen the jury acquitted Appellant of
aggravated robbery[,] the knife was out of the case.” Appellant is essentially
asserting that the jury rejected Rosen’s testimony that Appellant threatened him with
a knife. We disagree with this conclusion. The jury’s rejection of the aggravated
robbery charge only constitutes a determination that the evidence did not establish
that a deadly weapon was used or exhibited. In other words, the jury may very well
have concluded that Appellant threatened Rosen with a knife but that the knife was
not a deadly weapon. A knife is not considered a deadly weapon per se. See Blain v.
State, 647 S.W.2d 293, 294 (Tex. Crim. App. 1983). In this regard, defense counsel
made the following argument to the jury during closing argument:
             A deadly weapon is anything manifestly designed or adapted for
      the purpose of inflicting death or serious bodily injury. What we’ve
      heard is a handle of a steak knife. So obviously we’re not dealing with
      that aspect of the definition.
             Or, finally, anything in the manner of its use or intended use, is
      it capable of causing death or serious bodily injuries. So you have to
      adapt that definition to the circumstances in question and then decide,
      even if you believe there was a knife, if that rose to the level of use or
      exhibition of a deadly weapon under the circumstances of this case.
      Rosen testified that he pursued Appellant to retrieve the stolen merchandise.
He then saw the handle of the knife tucked inside Appellant’s pants. Rosen said
that, “even if he hadn’t showed me the knife, I wouldn’t have fought him.” Rosen

                                          4
stated that he was afraid that Appellant might stab him and hurt him. A person can
commit robbery by placing another in fear of imminent bodily injury. This is a
passive element when compared to the dissimilar, active element of threatening
another. Williams v. State, 827 S.W.2d 614, 616 (Tex. App.—Houston [1st Dist.]
1992, pet. ref’d). Under the “places another in fear” language, the factfinder may
conclude that an individual perceived fear or was placed in fear in circumstances
where no actual threats were conveyed by the accused. Id.; see Ex parte Denton,
399 S.W.3d 540, 551 (Tex. Crim. App. 2013) (“Under the ‘placed in fear’ language
in section 29.02 of the Texas Penal Code, the factfinder may conclude that an
individual perceived fear or was ‘placed in fear,’ in circumstances where no actual
threats were conveyed by the accused.”). Viewing the evidence in the light most
favorable to the verdict, a rational trier of fact could have found beyond a reasonable
doubt that Appellant committed robbery by either threatening Rosen or placing
Rosen in fear of imminent bodily injury or death. We overrule Appellant’s first
issue.
         In his second issue, Appellant contends that the trial court erred when it failed
to limit the definitions of intentionally and knowingly to the pertinent conduct
elements of the offense of aggravated robbery. In his brief, Appellant directs his
challenge to the charged offense of aggravated robbery. However, the jury did not
convict Appellant of aggravated robbery.            Accordingly, we will review the
provisions of the court’s charge pertaining to the lesser included offense of robbery
in our consideration of Appellant’s second issue.
         A claim of jury charge error is reviewed using the procedure set out in
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Barrios v. State,
283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Our first duty in analyzing a jury
charge issue is to decide whether error exists. Id. (citing Ngo v. State, 175 S.W.3d
738, 743 (Tex. Crim. App. 2005)). If error exists, we must determine whether the
                                             5
error caused sufficient harm to warrant reversal. Ngo, 175 S.W.3d at 743–44. When,
as in this case, the error was not objected to, reversal is proper only if the error caused
actual, egregious harm to the defendant. Arrington v. State, 451 S.W.3d 834, 840
(Tex. Crim. App. 2015); Ngo, 175 S.W.3d at 743–44.                 “An egregious harm
determination must be based on a finding of actual rather than theoretical harm.”
Cosio v. State, 353 S.W.3d 766, 777 (Tex. Crim. App. 2011). Actual harm is
established when the erroneous jury instruction affected the very basis of the case,
deprived the defendant of a valuable right, or vitally affected a defensive theory. Id.
(citing Almanza, 686 S.W.2d at 171). When assessing harm based on the particular
facts of the case, we consider the entire jury charge; the state of the evidence,
including contested issues and the weight of the probative evidence; the parties’
arguments; and all other relevant information in the record. Arrington, 451 S.W.3d
at 840; Cosio, 353 S.W.3d at 777. The Almanza analysis is fact specific and is done
on a “case-by-case basis.” Gelinas v. State, 398 S.W.3d 703, 710 (Tex. Crim. App.
2013).
         The trial court included the following definitions of “intentionally” and
“knowingly” in the charge:
               A person acts intentionally, or with intent, with respect to [the]
       nature of his conduct or to a result of his conduct when it is his
       conscious objective or desire to engage in the conduct or cause the
       result.
              A person acts knowingly, or with knowledge, with respect to the
       nature of his conduct or to circumstances surrounding his conduct,
       when he is aware of the nature of his conduct or that the circumstances
       exist. A person acts knowingly, or with knowledge, with respect to a
       result of his conduct when he is aware that his conduct is reasonably
       certain to cause the result.
See PENAL § 6.03(a), (b). Appellant contends that these definitions of the culpable
mental states should have been limited to the pertinent conduct elements to which

                                            6
they applied. Appellant contends that a correct jury charge would have included the
following instructions pertaining to the culpable mental states:
             The following definition applies to the mental state in causing or
       placing another in fear of bodily injury: A person acts intentionally, or
       with intent with respect to a result of his conduct when it is his
       conscious objective or desire to cause the result.
              The following definition applies to the mental state in unlawfully
       appropriating property: A person acts intentionally, or with intent with
       respect to the nature of his conduct when it is his conscious objective
       or desire to engage in the conduct.
              The following definition applies to the mental state in
       committing robbery in the course of committing theft: A person acts
       knowingly, or with knowledge with respect to the nature of his conduct
       or that the circumstances exist.2
We conclude that the court’s charge did not erroneously instruct the jury on the
culpable mental states applicable to this case.
       There are three conduct elements that may be involved in an offense, the
nature of the conduct, the result of the conduct, and the circumstances surrounding
the conduct. Young v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011). An
offense may contain any one or more of these conduct elements that alone or in
combination form the overall behavior which the legislature has intended to
criminalize, and it is these essential conduct elements to which a culpable mental
state must apply. McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989).
Thus, the culpable mental state definitions in the charge must be tailored to the
specific conduct elements of the offense. Cook v. State, 884 S.W.2d 485, 487 (Tex.
Crim. App. 1994). A trial court errs when it fails to limit the definitions of the
culpable mental states to the conduct element or elements of the offense to which



       2
        We assume that Appellant’s omission of the culpable mental state of “knowingly” from the first
two paragraphs and his omission of “intentionally” from the third paragraph was an oversight.
                                                    7
they apply. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Cook,
884 S.W.2d at 491.
      In order to obtain a conviction for robbery, the State was required to prove
that, in the course of committing theft, Appellant intentionally or knowingly
threatened or placed Rosen in fear of imminent bodily injury or death. PENAL
§ 29.02(a)(2). To establish that Appellant committed “theft,” the State was required
to prove that he unlawfully appropriated property with the intent to deprive the
owner of the property.      PENAL § 31.03(a) (West Supp. 2014).            The phrase
“unlawfully appropriate[d]” in the statutory definition of theft refers to the nature of
the conduct. Fields v. State, 966 S.W.2d 736, 739 (Tex. App.—San Antonio 1998),
rev’d on other grounds, 1 S.W.3d 687 (Tex. Crim. App. 1999); Ash v. State, 930
S.W.2d 192, 195 (Tex. App.—Dallas 1996, no pet.). Threatening or placing another
in fear of imminent bodily injury or death refers to the result of the conduct. Garza v.
State, 794 S.W.2d 497, 500–01 (Tex. App.—Corpus Christi 1990, pet. ref’d).
Finally, threatening or placing another in fear of bodily injury “in the course of
committing theft” refers to the circumstances surrounding the conduct. PENAL
§ 29.02(a); Fields, 966 S.W.2d at 739; Ash, 930 S.W.2d at 195. Accordingly,
Appellant is correct in asserting that the offense of robbery at issue in this case
contained all three conduct elements. Garza, 794 S.W.2d at 500–01; see also
Barnes v. State, 56 S.W.3d 221, 234 (Tex. App.—Fort Worth 2001, pet. ref’d),
abrogated on other grounds by Bell v. State, 169 S.W.3d 384, 398–99 (Tex. App.—
Fort Worth 2005, pet. ref’d); Ash, 930 S.W.2d at 195.
      Appellant focuses his argument on the element of causing or placing another
in fear of imminent bodily injury or death. As noted previously, this is a “result of
conduct” element. Appellant contends that, “[h]ad the [t]rial [c]ourt limited the
definitions of intentionally and knowingly to the applicable conduct elements[,] the
jury would have concluded that Appellant’s words did not result in placing
                                           8
Mr. Rosen in fear of imminent bodily injury or death so as to facilitate the unlawful
appropriation.” We disagree.
        The application paragraph of the court’s charge provided as follows:
               Now, if you find from the evidence beyond a reasonable doubt
        that on or about the 18th day of August, 2012, the defendant,
        CHRISTOPHER MCGEE, did unlawfully then and there while in the
        course of committing theft and with intent to obtain or maintain control
        of the property of the complainant, DAVID ROSEN, did then and there
        intentionally or knowingly threaten or place DAVID ROSEN in fear of
        imminent bodily injury or death, or you have a reasonable doubt
        thereof, that the defendant did not then and there use or exhibit a deadly
        weapon, to-wit: a knife, then you will find the defendant guilty of
        robbery.
In this paragraph, the mental states “intentionally or knowingly” directly modify the
result of the conduct (threatening or placing Rosen in fear of imminent bodily injury
or death). Thus, the application paragraph correctly limited the culpable mental
states on the “result of conduct” element.                      Additionally, the definitions of
“intentionally” and “knowingly” were preceded with the following instruction:
                Our law provides that a person commits the offense of robbery
        if, in the course of committing theft, as that term is hereinafter defined,
        and with intent to obtain and maintain control of property of another,
        he intentionally or knowingly threatens or places another in fear of
        imminent bodily injury or death.3
This provision also limited the culpable mental states with respect to the “result of
conduct” element. Accordingly, when read as a whole, the court’s charge correctly
limited the culpable mental states pertaining to the “result of conduct” element.
However, even if we assume that the court’s charge was erroneous, Appellant must
show egregious harm to obtain a reversal.




        We note that this instruction in the court’s charge is very similar to the language recently used by
        3

the Court of Criminal Appeals in Boston to define the offense of robbery. 410 S.W.3d at 322 n.1.
                                                      9
      Appellant contends that he was harmed by the alleged charge error because,
“[h]ad the [t]rial [c]ourt limited the definitions of intentionally and knowingly to the
applicable conduct elements[,] the jury would have concluded that Appellant’s
words did not result in placing Mr. Rosen in fear of imminent bodily injury or death
so as to facilitate the unlawful appropriation.” He bases this argument on the
contention that “Mr. Rosen testified he feared imminent bodily injury or death only
because of the use or exhibition of the knife and the jury found against the State on
this fact.” As noted previously, we disagree with Appellant’s contention that the
jury’s rejection of the aggravated robbery charge constituted a determination that
Appellant did not use or exhibit a knife.
      At a minimum, the application paragraph tended to limit the culpable mental
states to the applicable conduct elements, including the “result of conduct” element
that Appellant challenges. The facts in this case are not particularly complicated.
The evidence offered at trial included a store surveillance video depicting Appellant.
Rosen testified that he confronted Appellant and “told him I was going to call the
police, give us our merchandise back, and [Appellant] lifted up his shirt and showed
me a knife and I backed off.” Rosen testified that he was afraid he would be injured
or killed because of Appellant’s intentional and knowing conduct. Additionally, the
offense of robbery at issue in this case included all three conduct elements. Thus,
the jury was not instructed about a conduct element that did not apply to the case.
We conclude that any error in the trial court’s charge was not so egregious that
Appellant suffered actual harm or did not receive a fair trial.           We overrule
Appellant’s second issue.
      In his third issue, Appellant argues that the trial court erred when it failed to
give the correct parole instruction as required by Article 37.07, section 4 of the Texas
Code of Criminal Procedure. TEX. CODE CRIM. PROC. ANN. art. 37.07, § 4 (West
Supp. 2014). Article 37.07, section 4 requires that the jury instructions in the
                                            10
punishment charge contain information on parole law. See Taylor v. State, 233
S.W.3d 356, 359 (Tex. Crim. App. 2007). This instruction explains generally the
concepts of good conduct time and parole, states the defendant’s eligibility for parole
in terms of calendar years or sentence portion, and states that no one can predict
whether parole or good time might be applied to the defendant. See Luquis v. State,
72 S.W.3d 355, 366 (Tex. Crim. App. 2002). On appeal, we presume the jury
followed these instructions as given. Id.
      The court’s charge provided as follows:
            Under the law applicable in this case, if the defendant is
      sentenced to a term of imprisonment, he will not become eligible for
      parole until the actual time served equals one-fourth of the sentence
      imposed, without consideration of any good conduct time he may earn.
      Eligibility for parole does not guarantee that parole will be granted.
(Emphasis added). Appellant’s complaint focuses on the italicized portion of the
above-quoted provision. He contends that the correct instruction is contained in
Article 37.07, section 4(c), which reads as follows:
            Under the law applicable in this case, if the defendant is
      sentenced to a term of imprisonment, he will not become eligible for
      parole until the actual time served plus any good conduct time earned
      equals one-fourth of the sentence imposed. Eligibility for parole does
      not guarantee that parole will be granted.
(Emphasis added). The State responds that the correct instruction is contained in
Article 37.07, section 4(b), which reads as follows:
            Under the law applicable in this case, if the defendant is
      sentenced to a term of imprisonment, he will not become eligible for
      parole until the actual time served plus any good conduct time earned
      equals one-fourth of the sentence imposed or 15 years, whichever is
      less. Eligibility for parole does not guarantee that parole will be
      granted.
(Emphasis added). We agree with the State’s position that the instruction found in
Article 37.07, section 4(b) should have been given to the jury because of the prior

                                            11
conviction that had been alleged for enhancement purposes. See CRIM. PROC.
art. 37.07, § 4(b) (to be used when a prior conviction has been alleged for
enhancement under Section 12.42(b) of the Penal Code); PENAL §§ 12.42(b),
29.02(b). Accordingly, the instruction given by the trial court was erroneous
because it instructed the jury that good conduct time would not be considered in
determining Appellant’s eligibility for parole.4
       Appellant contends that the language set out in the provisions of Article 37.07,
section 4 is mandatory and that the failure to use the correct instruction is “always
harmful . . . without further analysis.” We disagree. Unobjected-to error in the
court’s charge regarding the defendant’s eligibility for parole is subject to review
under the “egregious harm” analysis set out in Almanza. Igo v. State, 210 S.W.3d
645, 646–47 (Tex. Crim. App. 2006). We conclude that Appellant did not suffer
egregious harm from the error in the court’s charge. If anything, the error was more
likely beneficial to Appellant rather than harmful because the error lessened the
possibility that the jury gave Appellant a harsher sentence to offset the effect of good
conduct time on his parole eligibility.
       The prosecutor made no reference to parole eligibility during her closing
argument at the punishment phase. Instead, she focused on Appellant’s lengthy
criminal record in seeking a harsher sentence. Defense counsel also made no
reference to parole eligibility during his closing argument. Additionally, the trial
court, in its charge, correctly instructed the jury as follows after the erroneous
instruction:
            It cannot be accurately predicted how the parole law and good
       conduct time might be applied to this defendant if he is sentenced to a
       term of imprisonment, because the application of these laws will
       depend on decisions made by prison and parole authorities.


       4
         The phrase “without consideration of any good conduct time [the defendant] may earn” is found
in Article 37.07, section 4(a), which applies to very serious crimes.
                                                      12
            You may consider the existence of the parole law and good
      conduct time. However, you are not to consider the extent to which
      good conduct time may be awarded to or forfeited by this particular
      defendant. You are not to consider the manner in which the parole law
      may be applied to this particular defendant.
See CRIM. PROC. art. 37.07, § 4(b). These instructions were mitigating and curative
of the erroneous instruction because they instructed the jury that one cannot predict
how parole law and good conduct time might be applied to Appellant. Further, the
jury was explicitly instructed that, although it could consider generally the existence
of parole and good conduct time, it could not apply that to Appellant specifically.
See Igo, 210 S.W.3d at 647 (parole instruction that contained standard curative
language admonishing jury not to consider extent to which parole law might be
applied to defendant was factor mitigating against finding of egregious harm). We
presume that the jurors understood and followed the court’s instructions in the jury
charge absent evidence to the contrary. Luquis, 72 S.W.3d at 366. There is no
evidence in the record to rebut the presumption that the jury followed the instruction
not to consider how good conduct time or parole law might be applied to Appellant.
Accordingly, we cannot conclude that the punishment charge error affected the very
basis of the case, deprived Appellant of a valuable right, or vitally affected a
defensive theory. The record does not show that the erroneous parole instruction
egregiously harmed Appellant. We overrule Appellant’s third issue.
                                   This Court’s Ruling
      We affirm the judgment of the trial court.




June 11, 2015                                               JOHN M. BAILEY
Do not publish. See TEX. R. APP. P. 47.2(b).                JUSTICE
Panel consists of: Wright, C.J.,
Willson, J., and Bailey, J.
                                           13
