                            NUMBER 13-06-319-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                   CORPUS CHRISTI - EDINBURG


FRANCISCO AGUILAR,                                                      Appellant,

                                         v.

THE STATE OF TEXAS,                                                     Appellee.


                  On appeal from the 331st District Court
                         of Travis County, Texas


                        MEMORANDUM OPINION

                Before Justices Yañez, Rodriguez, and Vela
                Memorandum Opinion by Justice Rodriguez

      Appellant, Francisco Aguilar, was charged by indictment with aggravated assault

with a deadly weapon on a public servant. See TEX . PENAL CODE ANN . § 22.02(b)(2)(B)

(Vernon Supp 2007). The jury found appellant guilty and sentenced him to twelve years'

confinement in the Texas Department of Criminal Justice–Institutional Division. By two
points of error, Aguilar contends that the trial court's charge violated his right to due

process under the Fourteenth Amendment and sections 38.04 and 38.05 of the Texas

Code of Criminal Procedure. See U.S. CONST . amend XIV, § 1; TEX CODE CRIM . PROC .

ANN . arts. 38.04, 38.05 (Vernon 1979). We affirm.

                                       I. Background

       During Aguilar's trial, Michael McGough testified that Aguilar harassed him and a

group of colleagues. After McGough told Officers Carlos Saldivar and Steve Boline about

the incident, Officer Saldivar approached Aguilar to question him. According to McGough,

the officers were wearing their uniforms and badges. Officer Saldivar testified that Aguilar

smelled of alcohol and abruptly "took a swing" at him. A struggle ensued. Officer Saldivar

further testified that Aguilar struck him repeatedly and cut him with a knife that Aguilar had

been holding under his sleeve. Aguilar testified that he had taken the knife out to peel an

orange and that "when I saw the uniform of the police I thought he was going to ask me

something," but instead, Officer Saldivar "came at [him]," "swung," and hit him in the eye

area without asking any questions. Aguilar claimed that the officers beat him even though

he did not resist arrest.

                                  II. Standard of Review

       An appellate court's "first duty" in analyzing a jury charge issue is "to decide whether

error exists." Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Although a

harmless-error analysis applies "to a wide range of errors" and "most constitutional errors

can be harmless," the Supreme Court has found that a few certain errors "defy analysis

by 'harmless-error' standards."    Arizona v. Fulminante, 499 U.S. 279, 306 (1991); see

United States v. Gonzalez-Lopez, 548 U.S. 140 , __, 126 S.Ct. 2557, 2564 (2006) (listing

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errors the Supreme Court has determined to be structural and not subject to harmless-error

review); see also Johnson v. United States, 520 U.S. 461, 468-69 (1997) (opining that

structural error has been found "only in a very limited class of cases").

       If error requiring harmless-error analysis is found, the degree of harm necessary for

reversal depends on whether the appellant preserved the error by objection. Olivas v.

State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006); see Almanza v. State, 686 S.W.2d

157,171 (Tex. Crim. App. 1985) (op. on reh'g). If the defendant properly objected to the

erroneous jury charge, reversal is required if we find "some harm" to the defendant's rights.

Olivas, 202 S.W.3d at 144; Ngo, 175 S.W.3d at 743; Almanza, 686 S.W.2d at 171.

However, if the defendant did not object or stated that he has no objection to the jury

charge, we may only reverse if the record shows egregious harm to the defendant. Olivas,

202 S.W.3d at 144; Ngo, 175 S.W.3d at 743-44; Almanza, 686 S.W.2d at 171. In making

this determination, "the actual degree of harm must be assayed in light of the entire jury

charge, the state of the evidence, including the contested issues and weight of probative

evidence, the argument of counsel and any other relevant information revealed by the

record of the trial as a whole." Almanza, 686 S.W.2d at 171; see Garrett v. State, 159

S.W.3d 717, 719-21 (Tex. App.–Fort Worth 2005), aff'd, 220 S.W.3d 926 (Tex. Crim. App.

2007) (finding no egregious harm in jury charge because "the record and statements of

counsel [did] not indicate that [defendant's] awareness that Complainant was a firefighter

was a contested issue"). Jury charge error causes egregious harm to the defendant if it

affects the very basis of the case, deprives the defendant of a valuable right, or vitally

affects a defensive theory. Hutch v. State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996)

(plurality opinion).

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                                              III. Applicable Law

         A person commits an aggravated assault of a public servant if the person commits

an assault as defined in section 22.011 and the offense is committed "against a person the

actor knows is a public servant while the public servant is lawfully discharging an official

duty as a public servant." TEX . PENAL CODE ANN . § 22.02(b)(2)(B) (Vernon Supp. 2007).

Aggravated assault is a second-degree felony, unless it is committed against an individual

the actor knows is a public servant who is lawfully discharging his duties, in which case it

is a first-degree felony. Id. A public servant is defined as "a person elected, selected,

appointed, employed, or otherwise designated as one of the following, even if he has not

yet qualified for office or assumed his duties: (A) an officer, employee, or agent of

government." Id. § 1.07(a)(41) (Vernon Supp. 2007).

                                                 IV. Discussion

                                               A. Due Process

         By his first issue, Aguilar argues that the trial court violated article 38.05 of the

Texas Code of Criminal Procedure by impermissibly instructing the jury on an ultimate fact

in dispute—that Officer Saldivar was a public servant. See TEX . CODE CRIM . PROC . ANN .

art. 38.05 (Vernon 1979). Article 38.05 provides that "[i]n ruling upon the admissibility of

evidence, the judge shall not discuss or comment on the weight of the same or its bearing

in the case. . . ." Id. The jury charge included the following: "You are instructed that




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          A person com m its an assault if the person "intentionally, knowingly, or recklessly causes bodily injury
to another, . . . intentionally or knowingly threatens another with im m inent bodily injury, . . . or intentionally or
knowingly causes the physical contact with another when the person knows or should reasonably believe that
the other will regard the contact as offensive or provocative." T EX . P EN AL C OD E A N N . § 22.01 (Vernon 1979).



                                                          4
Carlos Saldivar is a public servant." Aguilar complains that this language violated his due

process rights because it was a comment on the weight of the evidence prior to the verdict.

       "A charge that assumes the truth of a controverted issue is a comment on the

weight of the evidence and is erroneous." Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim.

App. 1986). At trial, however, Aguilar never disputed that Officer Saldivar was a police

officer. Moreover, under section 1.02(41)(A) of the Texas Penal Code, a police officer is

defined as a "public servant." TEX . PENAL CODE ANN . § 1.07 (Vernon Supp. 2007).

Therefore, because the jury charge did not comment on a controverted issue, it was not

error for the trial court to include the instruction in the jury charge. See Whaley, 717

S.W.2d at 32.

       Relying on In re Winship, 397 U.S. 358 (1970), Aguilar also contends in his first

issue that the complained-of jury instruction relieved the State of proving an element of the

offense beyond a reasonable doubt, thus violating his due process rights, and therefore

the case should be reversed and remanded without a harm analysis. However, even

assuming error, we disagree and conclude that a harmless error analysis is appropriate.

       In Johnson v. United States, the United States Supreme Court explained that

improperly instructing the jury on an element of the offense is subject to a harmless-error

analysis. 520 U.S. at 468; see Neder v. United States, 527 U.S. 1, 8 (1999) ("We have

often applied harmless-error analysis to cases involving improper instructions on a single

element of the offense."). The Texas Court of Criminal Appeals has also decried a trend

"'to label certain errors 'fundamental' then automatically reverse convictions without regard

to the nature and harm of the error in the case.'" Hawkins v. State, 135 S.W.3d 72, 82

(Tex. Crim. App. 2004) (quoting Almanza, 686 S.W.2d at 172-73). Also, "aside from



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federal constitutional errors labeled by the Supreme Court as structural, no error is immune

from a harm analysis." Id. The Supreme Court has identified the following as structural

errors: complete denial of counsel; biased trial judge; racial discrimination in selection of

grand jury; denial of self-representation at trial; denial of public trial; and defective

reasonable-doubt instruction. Gonzalez-Lopez, 548 U.S. 140, __, 126 S.Ct. at 2564 ;

Neder, 527 U.S. at 8; Johnson, 520 U.S. at 468 (stating that improperly instructing the jury

on an element of the offense is subject to harmless-error analysis); see Clark v. State, 878

S.W.2d 224, 226 (Tex. App.–Dallas 1994, no pet.) (applying harmless error analysis to

error under article 38.05); Tennison v. State, 814 S.W.2d 484, 486 (Tex. App.–Waco 1991,

no pet.) (same). Aguilar's complaints are not among the structural errors listed. Therefore,

we apply the Almanza harm analysis. See 686 S.W.2d at 171. Because Aguilar did not

object to the jury charge, we must determine whether the error, if any, caused him

egregious harm. See Olivas, 202 S.W.3d at 144; Ngo, 175 S.W.3d at 743-44; Almanza,

686 S.W.2d at 171.

       Because we have determined that the jury was not impermissibly instructed on an

ultimate fact in dispute under 38.05 and that we must apply Almanza's harm analysis even

if the complained-of instruction was error, we overrule Aguilar's first issue.

                                    B. Egregious Harm

       In his second issue, Aguilar argues that the trial court's charge error resulted in

egregious harm under Almanza. See Almanza, 686 S.W.2d at 171. Assuming without

deciding there was jury charge error, we determine egregious harm by first considering the

alleged error in light of the totality of the charge. See Almanza, 686 S.W.2d at 171. The

jury charge accurately described the relevant law and the elements of first degree



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aggravated assault of a public servant, including the mens rea component: that the

appellant knew that Officer Saldivar was a public servant.2 The application paragraph of

the jury charge instructed the jury that it had to find the elements of the offense beyond a

reasonable doubt.3 The charge further instructed the jury that it could presume that Aguilar

knew Officer Saldivar was a public servant if the "public servant was wearing a distinctive

uniform or badge indicating his employment as a public servant." However, it also

instructed the jury "that facts giving rise to the presumption must be proven beyond a

reasonable doubt," and "even though the jury may find the existence of such element, the

state must prove beyond a reasonable doubt each of the other elements of the offense

charged." Therefore, the jury could have determined that Officer Saldivar was a public

servant, but that Aguilar was not aware of it.

       Next, we must consider the state of the evidence and determine whether the alleged

jury charge error related to a contested issue. See Hutch, 922 S.W.2d at 173; Almanza,

686 S.W.2d at 171. After reviewing the record, we conclude that Officer Saldivar's status


       2
           The charge instructed the jury that

       [a] person com m its the offense of aggravated assault on a public servant with a deadly
       weapon, if he com m its the offense of assault, as herein defined, and he uses or exhibits a
       deadly weapon during the com m ission of the offense when he knows that the person
       assaulted is a public servant while the public servant is lawfully discharging an official duty.

       3
           The charge instructed the jury as follows:

       Now bearing in m ind the foregoing instructions, if you believe from the evidence beyond a
       reasonable doubt that the defendant, Francisco Aguilar. . . did then and there intentionally
       and knowingly threaten Carlos Saldivar with im m inent bodily injury and did then and there use
       or exhibit a deadly weapon, to-wit: a knife, during the com m ission of said assault, and the
       said Francisco Aguilar did then and there know that said Carlos Saldivar was a public
       servant, to-wit: a Peace Officer, and that the said Carlos Saldivar was then and there lawfully
       discharging an official duty to-wit: attem pting to detain or arrest the defendant, you will find
       the defendant guilty of the offense of aggravated assault of a peace officer and so say by
       your verdict, but if you do not so believe, or if you have reasonable doubt thereof, you will
       acquit the defendant of the offense of aggravated assault of a peace officer and proceed to
       consider whether the defendant is guilty of the lesser included offense of resisting arrest.



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as a police officer was not in dispute. Aguilar's theory of defense was that the officers,

including Officer Saldivar, overreacted and created the story about him in order "to cover

themselves." Aguilar's counsel referred to Officer Saldivar as "Officer" while cross-

examining Officer Saldivar and when questioning other witnesses.               During direct

examination, Aguilar testified that he saw Officer Saldivar's uniform. He referred to Officer

Saldivar as "the police" and "an officer." Throughout closing argument, Aguilar's counsel

referred to Officer Saldivar as an "officer."

       The State also presented probative evidence, the sufficiency of which is not

contested on appeal, to the jury that Officer Saldivar was a police officer. Officer Saldivar

testified that he was on duty when he encountered Aguilar. Two of the State's witnesses

and Aguilar testified that Officer Saldivar was wearing his police uniform and a badge.

Officer Saldivar wore his uniform and his badge when he testified at Aguilar's trial.

Moreover, section 1.07(41)(A) defines a police officer as a "public servant." TEX . PENAL

CODE ANN . § 1.07(a)(41) (Vernon Supp. 2007). Therefore, the jury could have affirmatively

found that Officer Saldivar was a public servant without the trial court's instruction because

the fact was uncontested and the evidence supported that finding.

       Finally, we review counsel's closing arguments. See Almanza, 686 S.W.2d at 171.

Defense counsel referred to Officer Saldivar as "officer" and "Officer Saldivar" during

closing argument. He asked the jury, "So it is not a matter of do you believe [Aguilar] or

do you believe the officers. . . . The State is here and required to prove that he's guilty

beyond a reasonable doubt. . ." Aguilar's counsel argued that the State had to prove that

Aguilar "intentionally and knowingly threaten[ed] the officer. . . . Was the officer lawfully




                                                8
discharging an official duty?" He then asked the jury, "Can a police officer provoke a

situation and then hide behind his badge and make the one he provoked a felon?"

         Although the trial court's charge included the complained-of instruction, it was

otherwise correct and properly instructed that the State had the burden of proving beyond

a reasonable doubt all of the elements of the offense. The evidence indisputably showed

that Officer Saldivar was a police officer. See Garrett, 159 S.W.3d at 719-21. A police

officer is included in the penal code's definition of a public servant. See TEX . PENAL CODE

ANN . § 1.07. Aguilar's testimony and arguments presented the position that Officer

Saldivar was a police officer who acted inappropriately. Therefore, based on the jury

charge as a whole and the entire record in this case, we conclude the record does not

show egregious harm. See Olivas, 202 S.W.3d at 144. Aguilar was not denied a fair and

impartial trial. The charge error, if any, did not affect the very foundation or basis of his

case, deprive him a valuable right, or significantly affect his defensive theory that Officer

Saldivar attacked him. See Hutch, 922 S.W.2d at 171. We overrule Aguilar's second

issue.

                                        V. Conclusion

         We affirm the judgment of the trial court.



                                                      NELDA V. RODRIGUEZ
                                                      Justice

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

Memorandum Opinion delivered and
filed this 17th day of April, 2008.




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