Opinion issued April 16, 2015




                                     In The

                             Court of Appeals
                                    For The

                         First District of Texas
                            ————————————
                             NO. 01-14-00392-CR
                           ———————————
                        CHANCE ROACH, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee


                   On Appeal from the 185th District Court
                           Harris County, Texas
                       Trial Court Case No. 1394753


                         MEMORANDUM OPINION

      Appellant, Chance Roach, was charged by indictment with aggravated

robbery. 1 Appellant pleaded not guilty. The jury found him guilty of the lesser-


1
      See TEX. PENAL CODE ANN. §§ 29.02(a)(2), 29.03(a)(2) (Vernon 2011),
      § 31.03(a), (b)(1) (Vernon Supp. 2014).
included offense of aggravated assault.2 The jury assessed punishment at 20 years’

confinement and a $10,000 fine. In three issues, Appellant argues the trial court

(1) abused its discretion by allowing evidence of the complainant’s prior consistent

statement, (2) abused its discretion by allowing the prosecutor to question two

witnesses about conversations between herself and the witnesses, and (3) erred by

including an inapplicable definition of “knowingly” in the jury charge.

       We affirm.

                                   Background

       On August 6, 2012, J. Hicks drove to a Lowe’s in Kingwood, Texas. After

Hicks parked and got out of his truck, Appellant and M. Layton stopped their truck

to speak with him. Layton offered to sell Hicks a Lowe’s gift card for half of its

cash value. Hicks declined but offered to give them some cash. Hicks reached

into his pocket, looked up, and then saw Appellant pointing a gun at him. Four

days later, Hicks would assert in a sworn statement that, when Hicks saw the gun,

Appellant then said, “[W]e’re going to take it all, motherfucker.” After seeing the

gun, Hicks ducked. Appellant fired the gun, and the bullet grazed Hicks’s back.

After a brief chase, Hicks ran inside the building, and Appellant and Layton fled in

their truck.



2
       See TEX. PENAL CODE ANN. §§ 22.01(a)(2) (Vernon Supp. 2014), 22.02(a)(2)
       (Vernon 2011).

                                         2
      At trial, Appellant’s counsel questioned Hicks about the first time he

reported to law enforcement his claim of Appellant’s statement to him.

Appellant’s counsel suggested that Hicks did not report the statement until after

learning that the Harris County District Attorney’s Office charged Appellant with

aggravated assault and that Hicks then reported that statement because Hicks

wanted Appellant to be charged with “a more serious” offense. The State then

offered Hicks’s sworn statement given four days after the incident to rebut

Appellant’s allegations.   Appellant objected, but the trial court overruled the

objection and admitted the statement.

      Also during trial, the prosecutor questioned two witnesses about their

conversations with her.     One incident occurred in response to Appellant’s

examination of Layton, who had confirmed that Appellant had made the

threatening statement to Hicks. During Appellant’s examination, Layton testified

that the first time she had reported Appellant’s statement to law enforcement had

been to the prosecutor less than a week before her testifying at trial.        The

prosecutor then questioned Layton about some of the details of the conversation,

including whether the prosecutor had told Layton anything about what Hicks had

reported to the police about the incident. Layton testified that the prosecutor had

not conveyed any such information.




                                        3
      The other incident occurred during the punishment phase of trial while

Appellant’s sister, C. Brandon, was on the stand. Appellant raised two objections

during the State’s examination of Brandon regarding her conversations with the

prosecutor. The trial court did not rule on either objection.

      After both sides rested during the guilt-innocence phase of the trial, the trial

court prepared the jury charge. The jury charge contained multiple definitions of

“knowingly.” The jury acquitted Appellant of the offense of aggravated robbery

but found him guilty of the lesser-included offense of aggravated assault.

                              Evidentiary Complaints

      In his first issue, Appellant argues the trial court abused its discretion by

allowing evidence of the complainant’s prior consistent statement. In his third

issue, Appellant argues the trial court abused its discretion by allowing the

prosecutor to question two witnesses about conversations between herself and the

witnesses.

A.    Standard of Review

      We review a trial court’s decision to admit or exclude evidence for an abuse

of discretion. Martinez v. State, 327 S.W.3d 727, 736 (Tex. Crim. App. 2010);

Tarley v. State, 420 S.W.3d 204, 206 (Tex. App.—Houston [1st Dist.] 2013, pet.

ref’d). A trial court abuses its discretion if its decision is “so clearly wrong as to

lie outside the zone within which reasonable people might disagree.” Taylor v.



                                          4
State, 268 S.W.3d 571, 579 (Tex. Crim. App. 2008); Tarley, 420 S.W.3d at 206. A

trial court does not abuse its discretion if some evidence supports its decision. See

Osbourn v. State, 92 S.W.3d 531, 538 (Tex. Crim. App. 2002); Tarley, 420 S.W.3d

at 206. We will uphold a trial court’s evidentiary ruling if it is correct on any

theory of law applicable to the case. See De La Paz v. State, 279 S.W.3d 336, 344

(Tex. Crim. App. 2009); Tarley, 420 S.W.3d at 206.

B.    Prior Consistent Statement

      During the trial, Hicks testified that, when he reached into his pocket to get

some cash, Appellant pointed the gun at Hicks’s face and said, “[N]o,

motherfucker, we’re going to take it all.”      On cross-examination, Appellant’s

counsel questioned Hicks about when he told police about Appellant’s statement

during the offense. The following exchange occurred:

      Q.     But at some point you did speak to someone in the Harris
             County District Attorney’s Office?

      A.     I think -- what was that? I can’t think of that guy’s name but,
             yes, sir I did talk.

      ....

      Q.     Sure. And the first time you talked to him, the guy, Chance
             Roach here, was he charged with aggravated assault?

      A.     I do not recall. I don’t know what the charge was.

      Q.     Do you remember telling -- being unhappy with the charges
             against him?

      A.     Probably.

                                         5
      Q.     And thinking something more serious should be filed?

      A.     Maybe so, yes, sir.

      Q.     Because [the then-assigned prosecutor] had described to you
             that the charges filed against this defendant were aggravated
             assault; isn’t that right?

      A.     Yes, sir, I guess.

      Q.     And the reason it was aggravated assault was because you had
             said nothing to the Houston Police Department about the man
             with the gun saying anything to [you]; isn’t is that right?

      A.     If it’s not on record, I guess it is. I don’t know. I’m just telling
             you from my experience, you know. I mean, I can’t --

      On redirect examination, the State elicited testimony about the first time

Hicks had reported to police what Appellant had said during the incident. The

State offered the sworn statement given by Hicks four days after the incident, in

which Hicks quoted Appellant saying, “[W]e’re going to take it all, motherfucker.”

Appellant objected, arguing that the statement did not qualify as a prior consistent

statement. The trial court overruled the objection and admitted the statement into

evidence.

      “A prior statement of a witness which is consistent with the testimony of the

witness is inadmissible except as provided in Rule 801(e)(1)(B).” TEX. R. EVID.

613(c). “A statement is not hearsay if . . . [t]he declarant testifies at the trial or

hearing and is subject to cross-examination concerning the statement, and the

statement is . . . consistent with the declarant’s testimony and is offered to rebut an


                                           6
express or implied charge against the declarant of recent fabrication or improper

influence or motive.” TEX. R. EVID. 801(e)(1)(B). The elements for introducing a

prior consistent statement, then, are (1) the declarant testifies at trial and is subject

to cross-examination, (2) an opposing party has raised an express or implied charge

of recent fabrication or improper influence or motive of the declarant’s testimony,

(3) the declarant’s prior statement is consistent with the declarant’s challenged

testimony at trial, and (4) the prior consistent statement must have been made

before the time that the alleged motive to lie arose. Hammons v. State, 239 S.W.3d

798, 804 (Tex. Crim. App. 2007).

      In objecting to the report’s admission, Appellant conceded that the State had

satisfied the first three elements to offer Hicks’s prior consistent statement.

Appellant argued, however, that the State had failed to satisfy the fourth element.

Appellant argues that his examination suggests that Hicks’s motive to lie arose

immediately after he reported the incident to the police. Appellant did develop,

during cross-examination of Hicks, that Hicks was upset about the incident and

called a local news channel after speaking with the police.            We agree with

Appellant that this testimony creates at least some inference that, if Hicks had

decided to fabricate portions of his story, it could have happened then.

      Nevertheless, this was not the only implication of fabrication raised by

Appellant during cross-examination. Appellant also indicated that Hicks became



                                           7
upset that Appellant was initially only charged with aggravated assault.

Appellant’s questioning suggested that it was only after this decision about how to

indict Appellant that Hicks reported Appellant’s statement to a law enforcement

official. Hicks’s statement to the police was made before Appellant was indicted.

Accordingly, this prior consistent statement was admissible to rebut the claim of

fabrication at this later date. See id.

      We overrule Appellant’s first issue.

C.    Conversations with Prosecutor

      During the trial, the prosecutor questioned two witnesses about

conversations she had had with them. One occurred during the guilt-innocence

phase. The other occurred during the punishment phase.

      1.     Guilt-Innocence

      During Appellant’s cross-examination of Layton, the woman in the truck

with him at the time of the incident, the following exchange occurred:

      Q.     Who was the first [person in law enforcement] you told Chance
             Roach said, I’ll take it all, blankety blank?

      A.     [The prosecutor].

      Q.     When was that?

      A.     Thursday.

      Q.     Thursday?

      A.     Yes, sir.


                                          8
      Q.     The first time you ever told anybody in law enforcement that
             Chance Roach said, we’ll take it all was last Thursday?

      A.     Yes, sir.

      Q.     All the time you talked to [the District Attorney Investigator],
             never said a word about it?

      A.     No, sir.

      ....

      Q.     (By [defense counsel]) I guess I just want to tie this down:
             There’s no prior statement you ever gave anybody that I, as
             Chance Roach’s lawyer, can look at or listen to where you said
             he said something, we’ll take it all, M.F.?

      A.     No, sir.

      After Appellant passed the witness to the State, the following exchange

occurred:

      Q.     And when we met in my office, did I -- did I tell you the facts
             of the case; or did I ask you questions?

      A.     You asked me questions.

      Q.     In fact did I show you any pictures while we were in my office?

      A.     No, ma’am.

      Q.     Are these the first pictures you’re seeing here today in this
             case?

      A.     Yes, ma’am.

      Q.     Did I tell you if the defendant said anything to [the
             complainant]?

      A.     No, ma’am.


                                         9
      [Defense counsel]: Objection, Your Honor. This is improper
            bolstering for the district attorney to make herself a witness to
            an interview of a witness.

      THE COURT: Overruled.

      On appeal, Appellant argues that the questioning constituted improper

bolstering of the witness’s testimony. Improper “bolstering” has been defined as

“any evidence the sole purpose of which is to convince the factfinder that a

particular witness or source of evidence is worthy of credit, without substantively

contributing ‘to make the existence of a fact that is of consequence to the

determination of the action more or less probable than it would be without the

evidence.’ ” Rivas v. State, 275 S.W.3d 880, 886 (Tex. Crim. App. 2009)

(emphasis in original) (quoting Cohn v. State, 849 S.W.2d 817, 819–20 (Tex.

Crim. App. 1993)).

      “Evidence that is otherwise inadmissible may become admissible when a

party opens the door to such evidence.” Williams v. State, 301 S.W.3d 675, 687

(Tex. Crim. App. 2009). “A party opens the door by leaving a false impression

with the jury that invites the other side to respond.” Hayden v. State, 296 S.W.3d

549, 554 (Tex. Crim. App. 2009). The false impression must be directly relevant

to the offense charged, not to a collateral issue. Id.

      During his cross-examination of the witness, Appellant asked Layton to

identify the first time she had told a law enforcement official about any statements



                                           10
made by Appellant during the incident. Layton acknowledged that the first time

had been to the prosecutor less than a week before she testified at trial.

Appellant’s examination of Layton created the impression that Layton’s claims

about what Appellant said could have been fabricated at the meeting with the

prosecutor, and perhaps at the prosecutor’s suggestion. See Williams v. State, 607

S.W.2d 577, 580 (Tex. Crim. App. 1980) (holding testimony about conversations

with prosecutor was invited by defense counsel and necessary to show testimony

was not fabricated).

      This was directly relevant to the offense charged because the State was

seeking to prove that Appellant committed aggravated robbery, which requires

showing Appellant was in the course of committing theft. See TEX. PENAL CODE

ANN. § 29.03(a) (Vernon 2011) (incorporating elements of robbery into offense of

aggravated robbery), § 29.02(a) (Vernon 2011) (establishing offense of robbery if

person threatens another in course of committing theft), § 31.03 (Vernon Supp.

2014) (establishing offense of theft if person unlawfully appropriates property with

intent to deprive owner of property). Appellant’s statement that he was going to

take all of Hicks’s money is directly relevant to showing that Appellant was in the

course of committing theft.

      Evidence of the conversations was relevant, then, to rebutting Appellant’s

suggestion that Layton had fabricated the quote after meeting with the prosecutor



                                        11
or at the prosecutor’s suggestion. See Williams, 607 S.W.2d at 580. Because the

evidence was relevant to rebutting this claim, the sole purpose of the evidence

could not have been to bolster Layton’s testimony. Rivas, 275 S.W.3d at 886.

Accordingly, we hold its admission was not improper.

      The cases Appellant relies on have no application here. In Brown, the

defense raised a hearsay objection to a line of questioning about the witness’s

conversation with the prosecutor. Brown v. State, 475 S.W.2d 938, 953 (Tex.

Crim. App. 1971), overruled on other grounds by Bradford v. State, 608 S.W.2d

918 (Tex. Crim. App. 1980). As opposed to this case, there was no indication that

the testimony was being used to rebut a suggestion of fabrication, however. See id.

Accordingly, the Court of Criminal Appeals reviewed it for error under a regular

hearsay analysis. See id.

      In Menefee, the prosecutor said during closing argument, “And Virse, I don’t

believe I have ever seen anybody that I thought was any more honest than she is.”

Menefee v. State, 614 S.W.2d 167, 168 (Tex. Crim. App. 1981). The objection was

to counsel’s inserting personal opinion. Id. Given that the witness in question was

the sole witness who could identify the defendant as the perpetrator of the crime,

the court held bolstering by offering personal opinion was improper. Id. Here, no

opinion of the prosecutor was offered.




                                         12
      2.     Punishment

      Appellant argues that, during punishment, the prosecutor improperly elicited

testimony about her conversation with the witness, Appellant’s sister. The State

argues this complaint has not been preserved for appeal. We agree.

      For purposes of analyzing preservation, the relevant portions of the State’s

examination of Appellant’s sister are as follows:

      Q.     And I told you that I would try my best to stay away from that
             because it’s not relevant to these things.

      MR. MARTIN: Objection. She’s not asking a questions, she’s just
          commenting. I object to that.

      THE COURT: Ask the next question, please.

      ....

      Q.     Can you tell the ladies and gentlemen of the jury what troubles
             he had when he was in the Army?

      A.     Actually you were the one that told me the troubles.

      Q.     Ma’am, I don’t believe that that’s accurate. What I asked you --

      MR. MARTIN: Objection, Judge. Now she’s testifying to what she
          did. She should have had an investigator talk to her.

      THE COURT: If there’s an objection, I haven’t heard an objection.
          But don’t argue with the witness, please. Just ask her
          questions. Don’t argue with her.

      In order to preserve an issue for appellate review, the complaining party

must (1) raise a timely objection and (2) obtain a ruling from the trial court. TEX.




                                         13
R. APP. P. 33.1(a).    Here, neither objection was ruled on by the trial court.

Accordingly, the issue has not been preserved. See id.

      We overrule Appellant’s third issue.

                                   Jury Charge

      In his second issue, Appellant argues the trial court erred by including an

inapplicable definition of “knowingly” in the jury charge.

A.    Standard of Review

      When reviewing jury-charge error, we first determine if error actually exists

in the jury charge. See Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005);

Johnson v. State, 227 S.W.3d 180, 182 (Tex. App.—Houston [1st Dist.] 2007, pet.

ref’d). If we find error, we then determine whether it harmed the appellant. Ngo,

175 S.W.3d at 743.

      The degree of harm requiring reversal depends upon whether an objection

was raised to the error at trial. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim.

App. 1996). If an appellant did not make a proper objection at trial, the appellant

“will obtain a reversal only if the error is so egregious and created such harm that

he has not had a fair and impartial trial.” See Almanza v. State, 686 S.W.2d 157,

171 (Tex. Crim. App. 1984). Under an egregious harm analysis, a reviewing court

examines “the entire jury charge, the state of the evidence, including the contested

issues and weight of the probative evidence, the arguments of counsel, and any



                                        14
other relevant information revealed by the record of the trial as a whole.” Warner

v. State, 245 S.W.3d 458, 461 (Tex. Crim. App. 2008). “Errors that result in

egregious harm are those that affect the very basis of the case, deprive the

defendant of a valuable right, or vitally affect a defensive theory.” Id. at 461–62.

B.    Analysis

      Section 6.03 of the Texas Penal Code provides multiple definitions of

“knowingly.” TEX. PENAL CODE ANN. § 6.03(b) (Vernon 2011).

      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.

Id. The section, then, contemplates knowledge with respect to (1) the nature of the

conduct, (2) the circumstances surrounding the conduct, and (3) the result of the

conduct. Id.; Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994).

      Not all offenses incorporate all three definitions of knowingly, however.

Accordingly, when a statute uses knowingly in only one of the defined senses, the

trial court errs by including the non-applicable definitions of knowingly in the

charge. Cook, 844 S.W.2d at 491.

      Appellant’s second issue is based on this premise of law.             Appellant

correctly argues that aggravated assault by threat—the offense under which the

jury convicted him—is a nature-of-the-conduct offense that includes a


                                          15
“knowingly” mens rea. See TEX. PENAL CODE ANN. § 22.01(a)(2) (Vernon Supp.

2014) (making it an offense of assault if person “. . . knowingly threatens another

. . .”), § 22.02(a)(2) (Vernon 2011) (incorporating elements of assault into offense

of aggravated assault); Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App.

2008) (holding assault by threat focuses on act of making threat regardless of any

result of threat).

       Appellant points out that the jury charge’s definition of knowingly included

both the nature-of-the-conduct definition and the result-of-the-conduct definition.

Accordingly, Appellant argues, the charge’s definitions “of ‘knowingly’

improperly permitted the jury to convict the appellant of a [result of the conduct]

type of aggravated assault, rather than a ‘nature of the conduct’ type of assault.”

The State concedes the error but argues it is harmless. We disagree with both

parties that it was error for the trial court to include the result-of-the-conduct

definition of knowingly in the jury charge instructions.

       While it is true that the jury found him guilty of aggravated assault, which is

a nature-of-the-conduct offense, this was not the only offense included in the jury

charge. Instead, the primary offense for the jury to consider was aggravated

robbery. Aggravated robbery incorporates into its elements the offense of robbery.

TEX. PENAL CODE ANN. § 29.03(a) (Vernon 2011). Robbery, as it applies to

Appellant, requires showing that the defendant “. . . knowingly threaten[ed] or



                                          16
place[d] another in fear of imminent bodily injury or death.” Id. § 29.02(a)(2)

(Vernon 2011). As with assault, the act of threatening someone is a nature-of-the-

conduct offense. See id. § 22.01(a)(2); Landrian, 268 S.W.3d at 536. Placing

someone in fear of imminent bodily injury or death, however, is a result-of-the-

conduct offense. See PENAL § 29.02(a)(2); Gutierrez v. State, 446 S.W.3d 36, 41

(Tex. App.—Waco 2014, pet. ref’d) (holding being placed in fear is result of

conduct); see also Bosier v. State, 771 S.W.2d 221, 225 (Tex. App.—Houston [1st

Dist.] 1989, pet. ref’d) (holding trial court does not err by including entire statutory

definition of knowingly in jury charge for offense of aggravated robbery).

      Because the nature-of-the-conduct and the result-of-the-conduct definitions

of knowingly were necessary for the entirety of the charge, we hold the trial court

did not err by including these definitions. We overrule Appellant’s second issue.

                                     Conclusion

      We affirm the judgment of the trial court.




                                                Laura Carter Higley
                                                Justice

Panel consists of Justices Jennings, Higley, and Huddle.

Do not publish. TEX. R. APP. P. 47.2(b).




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