AFFIRMED; Opinion Filed June 20, 2016.




                                               In The
                                Court of Appeals
                         Fifth District of Texas at Dallas
                                       No. 05-15-00550-CR

                            DOYLE GENE ROBERSON, Appellant
                                         V.
                             THE STATE OF TEXAS, Appellee

                      On Appeal from the Criminal District Court No. 6
                                   Dallas County, Texas
                           Trial Court Cause No. F13-55492-X

                              MEMORANDUM OPINION
                         Before Justices Francis, Lang-Miers, and Myers
                                    Opinion by Justice Myers
       Appellant Doyle Gene Roberson was convicted by a jury of possession with the intent to

deliver a controlled substance, cocaine, in an amount of four grams or more but less than two-

hundred grams. He was sentenced by the court to twenty-five years in prison. In three issues,

appellant argues (1) the trial court failed to include all of the essential elements of the offense in

the jury charge; (2) the evidence is insufficient to prove appellant committed the charged

offense; and (3) the trial court’s failure to define the word “knowingly” in the jury charge caused

appellant egregious harm. We affirm.

                                            DISCUSSION

       In his first issue, appellant contends the trial court violated his federal due process rights

by failing to include all of the essential elements of the offense in the jury charge. He argues that
the penalty group for the charged offense, penalty group one, which includes cocaine, is an

essential element of the offense.

       Appellant was indicted for possession with the intent to deliver a controlled substance,

cocaine, in an amount of four grams or more but less than two-hundred grams. See TEX. HEALTH

& SAFETY CODE ANN. § 481.112(a). The indictment alleged that appellant did “unlawfully and

knowingly possess with intent to deliver a controlled substance, to-wit: COCAINE, in an amount

by aggregate weight, including any adulterants or dilutants of 4 grams or more but less than 200

grams . . . .” The indictment included one enhancement paragraph alleging a prior conviction for

possession of a controlled substance.

       The statute under which appellant was charged, section 481.112 of the Health and Safety

Code, contains several paragraphs relating to the offense and its penalty ranges. Paragraph (a)

provides as follows: “Except as authorized by this chapter, a person commits an offense if the

person knowingly manufactures, delivers, or possesses with intent to deliver a controlled

substance listed in Penalty Group 1.” Id. § 481.112(a). Penalty Group one, which includes

cocaine, lists over fifty substances. See id. § 481.102.

       In Watson v. State, 900 S.W.2d 60 (Tex. Crim. App. 1995), the appellant argued the

protection against double jeopardy had been violated because he was, in effect, being punished

twice for the same offense––possession of both heroin and cocaine. Id. at 61. The court of

criminal appeals noted that section 481.112 classifies heroin and cocaine as penalty group one

substances for the purpose of establishing criminal penalties for violations of the Texas

Controlled Substances Act, and that the appellant was essentially arguing “that the Legislature

intended to make the penalty group, rather than the individual controlled substance, an essential

element of the offense.” Id. The court rejected this argument, concluding that “the Legislature

intended to make possession of each individual substance within the same penalty group a

                                                –2–
separate and distinct offense.” Id. at 62 (emphasis added); see also Nichols v. State, 52 S.W.3d

501, 503 (Tex. App.––Dallas 2001, no pet.) (rejecting, based on Watson, State’s contention that

because cocaine and methamphetamine are in the same penalty group, possession of cocaine and

possession of methamphetamine constituted same statutory offense; and holding, therefore, that

indictment which originally charged defendant with possession of cocaine could not be amended

to charge possession of methamphetamine over his objection).

       The elements for possession of a controlled substance with intent to deliver are that the

defendant: (1) possessed a controlled substance in the amount charged; (2) intended to deliver

the controlled substance to another; and (3) knew that the substance in his possession was a

controlled substance. See TEX. HEALTH & SAFETY CODE ANN. § 481.112(a); Walker v. State,

No. 03–14–00473–CR, 2016 WL 2942398, at *2 (Tex. App.––Austin May 10, 2016, no pet. h.)

(mem. op., not designated for publication). The elements of the offense include the specific

controlled substance, which in this case is cocaine. But the penalty group is not an element of

the offense. Cocaine is listed in penalty group one according to statute, so there was no fact-

finding role for the jury as to whether cocaine is or is not listed in penalty group one. Thus, the

trial court did not violate appellant’s federal due process rights by not including the penalty

group for the offense in the charge. We overrule appellant’s first issue.

       In a related second issue, appellant asserts that the evidence is insufficient to support the

verdict because establishing that cocaine is listed in penalty group one is an essential element of

the offense, and there is no such evidence in this record. When assessing a challenge to the

sufficiency of the evidence, we review all of the evidence in the light most favorable to the

verdict to determine whether any rational trier of fact could find the essential elements of the

crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 307, 319 (1979); Howard v.

State, 333 S.W.3d 137, 138 (Tex. Crim. App. 2011). It is the responsibility of the trier of fact to

                                               –3–
fairly resolve conflicts in testimony, to weigh the evidence, and to draw reasonable inferences

from basic facts to ultimate facts. Jackson, 443 U.S. at 318–19; Hooper v. State, 214 S.W.3d 9,

13 (Tex. Crim. App. 2007).

       The evidence at trial showed that on May 6, 2013, a Dallas police officer, Jeremy

Francis, and his partner, Kyle Kelly, stopped a tan Buick in response to a report from another

Dallas police officer, Brendan Gadomski, about a car that had been seen leaving an apartment

complex where a shooting occurred. A woman, later identified as Stephanie Bradley, was

driving the vehicle and appellant was the passenger. After having Bradley and appellant get out

of the vehicle, Officer Francis learned appellant had a warrant out for his arrest. Appellant was

placed under arrest and seated in the back of the patrol car. Bradley signed a consent to search

form and another officer, Thomas Coval, conducted a search of the vehicle. Officer Coval found

a black lockbox in the trunk of the car. Appellant could see the officer searching the vehicle and

did not seem surprised when he found the lockbox. Appellant said to Officer Francis, “[Y]ou

know what they found there? It’s mine.” The key was on the side of the lockbox. When Officer

Coval opened the lockbox, he found several ziplock “baggies” containing a white substance that

field-tested positive for cocaine, as well as marijuana, empty ziplock baggies, a scale, a pipe with

residue, and razor blades. The total weight of the crack cocaine found in the lockbox, including

adulterants and dilutants, was 4.1545 grams.       The State’s final witness was Dallas Police

narcotics detective Mario Castanon, who, in addition to testifying regarding narcotics trafficking,

stated that the crack cocaine found in the lockbox was cut and prepackaged in such a way as to

indicate it was intended for delivery and not for personal use.

       The defense called Stephanie Bradley, appellant’s girlfriend, who testified that she was

driving appellant in her car on the day in question. She testified in front of the jury that neither

she nor appellant knew what was in the trunk. On cross-examination, however, the State pointed

                                                –4–
out that Bradley had given a videotaped statement to the police on the day of the incident where

she said it was appellant’s lockbox. She said in that interview that she had seen the lockbox

three times but never opened it, and that she had seen it once with her cousin and twice with

appellant. Bradley also gave a written statement to the Dallas County District Attorney’s Office

on February 4, 2015, in which she maintained that she had never seen the lockbox before.

          The evidence at trial showed that the State proved the elements of the charged offense

beyond a reasonable doubt. The State was not required to show that cocaine is listed in penalty

group one because, as we have already noted, the penalty group is not an essential element of the

offense of possession with the intent to deliver cocaine. See Watson, 900 S.W.2d at 62. We

overrule appellant’s second issue.

          In his third issue, appellant argues he was egregiously harmed when the trial court failed

to include the statutory definition of the required mental state, knowingly, in the jury charge.

          The trial court instructed the jury in part as follows in the application paragraph of the

charge:

          Now, if you find from the evidence beyond a reasonable doubt that on or about
          May 6, 2013 A.D., in Dallas County, Texas, the Defendant, Doyle Roberson, did
          unlawfully and knowingly possess with intent to deliver, a controlled substance,
          to-wit: Cocaine, in an amount by aggregate weight, including any adulterants or
          dilutants of 4 grams or more but less than 200 grams, then you will find the
          Defendant guilty of the offense of Possession with Intent to Deliver a Controlled
          Substance 4 grams or more but less than 200 grams, and so say by your verdict of
          “guilty.”

But the court did not instruct the jury on the definition of “knowingly” in the abstract portion of

the charge. Statutorily-defined terms must be included in the charge. See Ester v. State, 151

S.W.3d 660, 664 (Tex. Crim. App. 2004); Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex. App.––

Houston [14th Dist.] 2001, pet. ref’d). Because appellant did not object at trial to this error of

which he now complains, we will reverse only if he suffered egregious harm. Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (opinion on reh’g).
                                                 –5–
       Unobjected-to charge error will not result in reversal of a conviction in the absence of

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

S.W.2d at 171. In examining the record for egregious harm, we must consider (1) the entire jury

charge, (2) the state of the evidence, including the contested issues and the weight of the

probative evidence, (3) the final arguments of the parties, and (4) any other relevant information

revealed by the record of the trial as a whole. Allen, 253 S.W.3d at 264; Olivas v. State, 202

S.W.3d 137, 144 (Tex. Crim. App. 2006). The purpose of this review is to illuminate the actual,

not just theoretical, harm to the accused. Almanza, 686 S.W.2d at 174. Jury charge error is

egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable

right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264; Stuhler v. State, 218

S.W.3d 706, 719 (Tex. Crim. App. 2007).

       When a statutory definition is not included in the charge, we assume the jury would

consider the commonly understood meaning of the word or phrase in its deliberations. Nejnaoui,

44 S.W.3d at 120.    The statutory definition of “knowingly” is not substantially different from

the common usage and understanding of the term. See Mathis v. State, 858 S.W.2d 621, 622–23

(Tex. App.––Fort Worth 1993, pet. ref’d); Tapia v. State, No. 08–01–00283–CR, 2002 WL

31195323, at *4 (Tex. App.––El Paso Oct. 3, 2002, pet. ref’d) (not designated for publication);

see also Prior v. State, No. 05–03–00794–CR & 05–03–00795–CR., 2004 WL 728867, at *6

(Tex. App.––Dallas Apr. 6, 2004, pet. ref’d) (not designated for publication). The “failure to

give an abstract instruction is reversible only when such an instruction is necessary to a correct

or complete understanding of concepts or terms in the application part of the charge.” 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); see also Prior, 2004 WL 728867, at *6.

       In this case, the prosecutor told the jury during voir dire that the State had to prove that

                                               –6–
appellant knowingly possessed, with the intent to deliver, a controlled substance, cocaine. She

explained, in part:

       Now, knowingly. A person acts knowingly, or with knowledge, with respect to
       the nature of the [sic] his conduct when he is aware of the nature of his conduct.
       A person acts knowingly, or with knowledge, with respect to the result of his
       conduct when he is aware that his conduct is reasonably certain to cause the
       result. . . .

See TEX. PENAL CODE ANN. § 6.03(b). She gave an example of a “knowing” mental state. The

defense did not object to the prosecutor’s explanation. At the conclusion of her portion of the

voir dire, the prosecutor asked the prospective jurors:

       But is there anybody here that is unclear about those elements that have to be
       met? Everybody clear about that?

       Is there anybody here that does not agree and cannot follow that law as it is given
       to you to follow and to analyze the facts of this case? Anybody? So everybody is
       going to be okay with that? Everybody knows all this stuff? We’re all good to
       go?

None of the prospective jurors gave any indication they were unclear about the elements of the

offense. Defense counsel gave the prospective jurors several examples of how possession might

by not be “knowing.” He also told them: “You’ve got to knowingly possess something. You

can’t––if you unknowingly possess it, then even though you may possess it, you’re not guilty of

the crime. Does that make sense?” The prospective jurors responded, “Yes.” He concluded this

portion of his voir dire by telling them, “Possession we’re talking about has to be knowing.” The

parties’ closing arguments reminded the jury that “knowingly” was an element of the offense.

       The statutory definition of “knowingly” was read to the jury during voir dire. The jury

indicated it understood––based on the explanations and examples offered by both parties during

voir dire––what “knowingly” meant. The parties’ closing arguments also reminded the jury that

“knowingly” is an element of the offense. The common usage of the word “knowingly” is not

substantially different from the statutory definition. See Mathis, 858 S.W.2d at 622–23. The


                                                –7–
issue for the jury to resolve was whether appellant “knowingly” possessed the cocaine in the

lockbox. The application portion of the jury charge tracked the indictment and instructed the

jurors that before they could convict, they had to find beyond a reasonable doubt that appellant

“knowingly” possessed the cocaine with the intent to deliver. Furthermore, the crucial dispute in

this case was between the credibility of the witnesses: Officer Francis testified that appellant

spontaneously told him the contents of the lockbox belonged to him, not his girlfriend, while

appellant’s girlfriend, Bradley, offered conflicting accounts of whether the lockbox belonged to

appellant. Based on the record before us, we conclude appellant suffered no egregious harm as a

result of the omission of the definition of “knowingly” from the abstract portion of the jury

charge. We overrule appellant’s third issue.

       We affirm the trial court’s judgment.



                                                           /Lana Myers/
                                                           LANA MYERS
                                                           JUSTICE

Do Not Publish
TEX. R. APP. P. 47
150550F.U05




                                               –8–
                               Court of Appeals
                        Fifth District of Texas at Dallas
                                      JUDGMENT

DOYLE GENE ROBERSON, Appellant                        On Appeal from the Criminal District Court
                                                      No. 6, Dallas County, Texas
No. 05-15-00550-CR         V.                         Trial Court Cause No. F13-55492-X.
                                                      Opinion delivered by Justice Myers. Justices
THE STATE OF TEXAS, Appellee                          Francis and Lang-Miers participating.

       Based on the Court’s opinion of this date, the judgment of the trial court is AFFIRMED.

Judgment entered this 20th day of June, 2016.




                                                –9–
