Opinion issued November 26, 2013




                                    In The

                             Court of Appeals
                                    For The

                         First District of Texas
                          ————————————
                             NO. 01-11-00774-CR
                          ———————————
                      EMORLADE SAMMY, Appellant
                                       V.
                      THE STATE OF TEXAS, Appellee



          On Appeal from the County Criminal Court at Law No. 1
                           Harris County, Texas
                       Trial Court Case No. 1735196



                         MEMORANDUM OPINION

      A jury found appellant, Emorlade Sammy, guilty of the offense of assault of

a family member 1 and assessed his punishment at confinement for 365 days and a


1
      See TEX. PENAL CODE ANN. § 22.01(b)(2) (Vernon 2011).
fine of $1,000. In two issues, appellant contends that the trial court erred in

including in its definition of “intentionally” in its charge to the jury, language that

“authorized conviction on a set of facts (intent to act, but no intent to harm) that

did not constitute an offense” and he received ineffective assistance of counsel at

trial.

         We affirm.

                                     Background

         The complainant, Chie “Janet” Horimoto, testified that she and appellant had

dated since 2005 and lived together from 2009 to 2011. On January 29, 2011, she

and appellant attended a friend’s birthday party at a nearby club. When they left at

1:00 a.m. the next morning, appellant initially agreed that the complainant would

drive home because he had been “drinking heavily,” but he then refused to let her

drive when they got to her car. After an argument, appellant drove off without her.

Because she did not have her cellular telephone, and appellant had her keys and

identification, the complainant walked home. When she arrived, the complainant

rang the doorbell several times, but finally sat down outside to wait until

“morning” when she asked a neighbor, Cindy Seale, for help.

         Seale’s boyfriend, Jonathan Christ, used a ladder to get into an open second-

story window of the complainant’s townhouse. Once inside, the complainant

found appellant asleep in a third-story bedroom, she retrieved her identification

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and keys, and she went to take a shower. The complainant then “tapped” appellant

to wake him, told him to pack his things and leave, and went back to the master

bedroom and locked the door.

      Appellant suddenly forced open the master bedroom door, moved toward the

complainant, pointed at her face and shouted repeatedly, “I’m going to fuck you

up!” Appellant threw the complainant against a wall and down onto the bed each

time she tried to get up. She tried to leave, but because appellant was following

her, she ran back to the bedroom where appellant “pinned [her] to the wall” and

“grabbed [her] by [the] ankles while [she] was sitting on the couch.” Appellant

continued to struggle with the complainant, yelling “fucking bitch” and throwing

her onto the bed again.

      The complainant then grabbed her dog and ran out of the room and down the

stairs to the stairwell between the first and second floors. As she was running,

appellant grabbed and ripped the complainant’s shirt and grabbed and pulled out

her hair, causing the complainant to fall and sprain her ankle. As they continued

down the stairs, appellant “tackled” the complainant by jumping on her back,

causing them both to fall down the stairs. When they landed, the complainant’s

head was in appellant’s lap, and he put her in a “headlock” and squeezed.

Appellant then got up and began pacing back and forth for several minutes. When




                                       3
he was furthest away, she ran out the door and back to Seale’s townhouse and told

her that appellant had “hit her.”

      The complainant further testified that appellant had also assaulted her in

2005 in his apartment because she was unhappy that he had an “illegal substance”

and she wanted to leave. During that incident, appellant pushed her up against a

picture frame, breaking the glass, and slapped her face twice. When she tried to

telephone for emergency assistance, he grabbed the telephone from her hands and

threw it down. Appellant stopped the assault after the complainant screamed, and

she was able to leave.

        Appellant testified that he and the complainant had an argument about who

would drive home after the birthday party. When she refused to get into the car, he

drove around the block. When he came back to get the complainant, she was not

there, and he drove home. At home, appellant fell asleep and then “woke up to a

beating” by the complainant. Although he tried to calm her down, the complainant

kicked him in the groin. When she ran into the master bedroom, he used his

shoulder to “bust” open the door. When the complainant tried to kick him again,

she accidentally kicked a chest instead and hurt her foot. Appellant explained that

he tried to get the complainant to calm down, saying that he would make breakfast.

However, the complainant kept saying that she wanted him out of the house, and

she continued to swing at him with her fists. As appellant backed away toward the

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stairs, the complainant kicked at him, and he lost his balance.             By “reflex,”

appellant grabbed her foot, and they both slid down the stairs with him falling

backward. Appellant expressly testified that he never put the complainant in a

headlock, hit her, or pulled her hair.

                                     Jury Charge

       In his first issue, appellant argues that the trial court’s charge error caused

him egregious harm because its definition of “intentionally” allowed the jury to

convict him if it found that “his conduct was intentional without requiring a

finding that he intended or knew that injury would result for the complainant.”

Appellant asserts that the effect of this error was to “charge [appellant] with two

offenses”: (1) assault and (2) “causing bodily injury by intentionally acting.”

Appellant acknowledges that he did not object to the jury charge below, but asserts

that the erroneous charge caused him egregious harm. See Almanza v. State, 686

S.W.2d 157, 171 (Tex. Crim. App. 1984). The State agrees that the trial court

erroneously charged the jury, but asserts that appellant was not egregiously harmed

by the error. 2


2
       In his reply brief, appellant asserts that although the State concedes jury charge
       error, it “misapprehends the nature of the error.” He argues that because the trial
       court’s erroneous charge “required the jury to find that the result was intended if
       the State proved that the conduct was intended” and the trial court “defined
       intentionally causing a result to include intentionally engaging in conduct that
       happened to cause the result,” required that the jury “convict on grounds not
       authorized by statute” and “lower[ed] the State’s burden of proof.” Appellant also
                                            5
       A trial court must instruct a jury by “a written charge distinctly setting forth

the law applicable to the case.” TEX. CODE CRIM. PROC. ANN. art. 36.14 (Vernon

2007). A review of charge error involves a two-step analysis. Abdnor v. State, 871

S.W.2d 726, 731 (Tex. Crim. App. 1994). First, we must determine whether error

actually exists in the charge, and, second, if error does exist, we must determine

whether any harm resulted from the error to require reversal. Id. at 731–32.

      Here, in the abstract portion of the submitted charge, the trial court correctly

defined the offense of assault as:

            Our law provides that a person commits the offense of assault if
      the person intentionally or knowingly causes bodily injury to another
      person.

(Emphasis added.) The trial court defined the culpable mental states as:

             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.

             A person acts intentionally, or with intent, with respect to a
      result of his conduct when it is his conscious objective or desire to
      engage in the conduct or cause the result.




      asserts that the trial court’s erroneous charge presented an “invalid legal theory”
      upon which the jury could convict him. We note, however, that the Texas Court
      of Criminal Appeals has concluded that inclusion of “engage in the conduct”
      language in the abstract portion of the jury charge definition of the culpable
      mental state for a result of conduct offense is error because it refers to the “nature
      of the conduct,” which is not a conduct element in a result of conduct offense. See
      Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App. 1994). Regardless, we
      conduct our analysis of non-objected-to jury charge error under Almanza.
                                            6
(Emphasis added.) To sustain a conviction for assault, the evidence must prove

that a defendant intentionally, knowingly, or recklessly caused bodily injury to

another. TEX. PENAL CODE ANN. § 22.01. Assault is a “result of conduct” offense

requiring a mental state that relates not to the specific conduct, but to the result of

that conduct, i.e., the causing of bodily injury. See id.; Fuller v. State, 819 S.W.2d

254, 256 (Tex. App.—Austin 1991, pet. ref’d). “Any other language relating to

conduct is inconsequential.” Cook v. State, 884 S.W.2d 485, 490 (Tex. Crim. App.

1994).

      Although the trial court’s definition of “knowingly” was limited to the result

of the conduct, its definition of “intentionally” was not and included the language,

“engage in the conduct.” Engaging in conduct is not an element of a “result of

conduct” offense and is only relevant if the voluntariness of an act is at issue. Id.

(in prosecution of “result of conduct” offense, intent to engage in conduct is not

explicit element to be proven). With a result-oriented offense, the definition of the

culpable mental state must be limited to the result of the conduct, and a trial court

errs in not limiting the definition. See id. at 491; Fuller, 819 S.W.2d at 256

(holding that inclusion of “engage in the conduct” language in definitional portion

of jury charge is error when offense charged is a result-oriented offense).

Accordingly, we hold that the trial court erred in not limiting the definition of




                                          7
“intentionally” in the abstract portion of the jury charge to the result of the

conduct.

      When, as here, a defendant does not object, or states that he has no objection

to a jury charge, an error will not result in reversal unless the record shows

“egregious harm” such that the defendant was denied a fair trial. Warner v. State,

245 S.W.3d 458, 461 (Tex. Crim. App. 2008); see Almanza, 686 S.W.2d at 171

(harm is egregious if error prevented fair and impartial trial). Egregious harm

exists when the record shows that a defendant has suffered actual, rather than

merely theoretical, harm from jury-charge error. Almanza, 686 S.W.2d at 174.

Egregious harm consists of error affecting the very basis of the case or depriving

the defendant of a valuable right, vitally affecting a defensive theory, or making

the case for conviction or punishment clearly and significantly more persuasive.

Sanders v. State, 817 S.W.2d 688, 692 (Tex. Crim. App. 1991); Martinez v. State,

190 S.W.3d 254, 259 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d). Thus,

appellant has the burden to show that he suffered actual harm as a result of the

charge error. Abdnor, 871 S.W.2d at 732. To determine whether a defendant has

sustained harm from a non-objected-to charge, we consider the Almanza factors:

(1) the entire charge, (2) the state of the evidence including the contested issues

and the weight of the probative evidence, (3) the arguments from counsel, and (4)




                                         8
other relevant information revealed by the record of the trial as a whole. Hutch v.

State, 922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Almanza, 686 S.W.2d at 171.

      Under the first Almanza factor, we examine the entire jury charge. In so

doing, we “may consider the degree, if any, to which the culpable mental states

were limited by the application portions of the jury charge.” Hughes v. State, 897

S.W.2d 285, 296 (Tex. Crim. App. 1994). Although appellant argues that “nothing

in the charge” corrected the “misdirection” in the abstract definition of

“intentionally,” the application portion of the jury charge properly applied the law

to the factual context and limited the definition of “intentionally” to the result of

appellant’s conduct:

            Therefore, if you believe from the evidence beyond a
      reasonable doubt that in Harris County, Texas, EMORLADE
      SAMMY, hereafter styled the Defendant, heretofore on or about
      January 30, 2011, did then and there unlawfully, intentionally or
      knowingly cause bodily injury to CHIE HORIMOTO, a person with
      whom the Defendant had a dating relationship, hereafter styled the
      Complainant by pushing the Complainant to the ground or by pulling
      the Complainant’s hair, then you will find the Defendant guilty.

(Emphasis added.) The trial court instructed the jury to find appellant guilty only

if it found that he intentionally or knowingly caused the result, bodily injury, rather

than upon a finding that appellant intentionally or knowingly engaged in conduct,

which inadvertently caused bodily injury. We presume that the jury followed this

instruction. See Luquis v. State, 72 S.W.3d 355, 366 (Tex. Crim. App. 2002)

(presuming that jury followed instruction); Williams v. State, 226 S.W.3d 611, 618
                                          9
(Tex. App.—Houston [1st Dist.] 2007, no pet.). The application paragraph pointed

the jury to the appropriate portion of the definitions of intentionally and

knowingly. See Hughes, 897 S.W.2d at 296. Texas courts have repeatedly held

that where the application paragraph of the charge correctly instructs the jury on

the law applicable to the case, this mitigates against a finding that error in the

abstract portion of the jury charge was egregious. See, e.g., Medina v. State, 7

S.W.3d 633, 640 (Tex. Crim. App. 1999); Kuhn v. State, 393 S.W.3d 519, 529–30

(Tex. App. —Austin 2013, no pet.).

       Additionally, the alternative culpable mental state of “knowingly” was

properly limited to the result of appellant’s conduct. “The harmfulness of error in

a jury charge should be measured, at least in part, against the likelihood that the

jury’s verdict was actually based upon an alternative theory of culpability not

affected by erroneous portions of the charge.”       Williams, 226 S.W.3d at 618

(quoting Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996)). The

evidence presented at trial was sufficient for the jury to convict appellant under the

knowingly culpable mental state. Based on the evidence presented, the jury could

have reasonable found that appellant knowingly caused bodily injury to the

complainant by grabbing her hair and tackling her from behind as she was running

down the stairs from appellant. The jury also heard testimony that appellant threw

the complainant against a wall and grabbed her and threw her down on the bed

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several times. The evidence supports a finding that appellant knew his conduct

was reasonably certain to cause bodily injury; therefore, there was a separate,

viable theory of the offense of assault upon which the jury could have convicted

appellant.   Accordingly, we conclude that this first Almanza factor weighs against

a finding of egregious harm. See Williams, 226 S.W.3d at 618.

      Under the second Almanza factor, we examine the evidence at trial. The

complainant testified that appellant forced open the master bedroom door, pointed

in her face, and shouted repeatedly, “I’m going to fuck you up!” Appellant then

threw her against a wall and down on the bed several times as she tried to get up.

When the complainant ran down the stairs to escape, appellant pulled out her hair

and caused her to fall and injure her ankle. Appellant then tackled her by jumping

on her back, and they both fell down the stairs. When they landed at the bottom of

the stairs, appellant put the complainant in a “headlock” and squeezed around her

neck. The complainant suffered scratches, skin tears, and burns from falling down

the stairs, bruising on her arms, and a sprained ankle.

      The State also presented the testimony of Houston Police Officer A. Silva,

who was dispatched to investigate the assault. Upon his arrival, Silva found a “big

chunk” of the complainant’s hair on the handrail of the stairs.          When he

interviewed the complainant, Silva saw scratches on her neck and side and a cut on

her foot. He saw damage to the frame and door to the master bedroom of her

                                          11
townhome and dents in the walls.           In contrast, appellant testified that the

complainant started a fight by waking him up, “beating” him, and kicking him in

the groin. Although appellant admitted that he forced open the master bedroom

door, he denied that he put the complainant in a headlock, hit her, or pulled her

hair. And he grabbed the complainant’s foot only when she kicked at him, and this

caused them both to fall down the stairs. Importantly, we note that appellant’s

defense centered on his assertion that the complainant was the aggressor against

him. He did not assert that he engaged in the complained-of conduct without

intending to cause bodily injury. Indeed, he denied that he had engaged in any

such conduct. We conclude that the state of the evidence also weighs against a

finding of egregious harm.

      Under the third Almanza factor, we consider the arguments of counsel at

trial, noting that jury arguments, alone, are not a dispositive factor in an Almanza

analysis. Hutch, 922 S.W.2d at 174. Appellant’s trial counsel argued, correctly,

the definition of intentionally: “Did he intend? Did he knowingly try to cause

bodily harm to the young lady?” The State erroneously objected to this argument:

“Objection, your Honor. That’s a misstatement of the law. The intent is not to the

bodily injury. It’s intent to the act.” However, the trial court did not sustain the

objection and referred the jury to its charge.

      Later, during its closing argument, the State argued:

                                          12
      On January 30th she came home early in the morning, walking home.
      Now, some of these elements that we have to prove, intentionally
      knowingly, as you heard the defense attorney say, the Judge told you
      it’s going to be in the jury charge and I’ve kind of bracketed it here in
      my copy. Knowingly, acting with the knowledge that an act is about
      to happen or intending that act to happen is what I would argue to you
      this means or intending the act to cause pain. Not intending to cause
      pain period.

      I know it sounds a little confusing but this doesn’t mean the defendant
      meant to harm her. If he meant to pull her hair and it ended up
      causing her pain, that’s fine. If he meant to push her, that’s the same
      thing, okay?

(Emphasis added.) Appellant raised no objection to this argument. Although the

highlighted portion of this argument is erroneous and confusing, the State did not

repeat the argument.      More importantly, as noted above, appellant’s defense

focused on his assertions that the complainant was the aggressor and he did not

engage in the complained-of conduct. Thus, the State’s erroneous argument did

not at all address his defensive theory. Accordingly, we conclude that the third

Almanza factor weighs neither for nor against a finding of egregious harm.

       After reviewing the record and considering the factors set forth in Almanza,

we hold that the trial court’s error in the abstract portion of the jury charge defining

“intentionally” was not egregious.

      We overrule appellant’s first issue.




                                          13
                            Ineffective Assistance of Counsel

      In his second issue, appellant argues that his trial counsel rendered

ineffective assistance because he failed to object to the erroneous definition of

“intentionally” in the abstract portion of the jury charge.

        To prove a claim of ineffective assistance of counsel, appellant must show

that (1) his counsel’s performance fell below an objective standard of

reasonableness and (2) there is a reasonable probability that, but for counsel’s

unprofessional errors, the result of the proceeding would have been different.

Strickland v. Washington, 466 U.S. 668, 687, 104 S. Ct. 2052, 2064 (1984); Lopez

v. State, 343 S.W.3d 137, 142 (Tex. Crim. App. 2011). A reasonable probability is

one “sufficient to undermine confidence in the outcome.” Strickland, 466 U.S. at

694, 104 S. Ct. at 2068. In reviewing counsel’s performance, we look to the

totality of the representation to determine the effectiveness of counsel, indulging a

strong presumption that his performance falls within the wide range of reasonable

professional assistance or trial strategy. See Robertson v. State, 187 S.W.3d 475,

482–83 (Tex. Crim. App. 2006); Thompson, 9 S.W.3d 808, 813 (Tex. Crim. App.

1999). Appellant has the burden to establish both prongs by a preponderance of

the evidence. Jackson v. State, 973 S.W.2d 954, 956 (Tex. Crim. App. 1998). “An

appellant’s failure to satisfy one prong of the Strickland test negates a court’s need




                                          14
to consider the other prong.” Williams v. State, 301 S.W.3d 675, 687 (Tex. Crim.

App. 2009).

          To meet the second prong of Strickland, appellant must show that his trial

counsel’s deficient performance damaged his defense to such a degree that there is

a reasonable probability the result of the trial would have been different. See 466

U.S. at 693. We evaluate this factor while taking into consideration the totality of

representation and the particular circumstances of this case. Thompson, 9 S.W.3d

at 813.

      If appellant’s trial counsel had objected to the erroneous jury charge, the

error would require reversal if it caused only some harm, not egregious harm.

Almanza, 686 S.W.2d at 171; Green v. State, 891 S.W.2d at 298. However, we

again note that we have concluded that the application paragraph of the charge

focused the jury on the result of appellant’s conduct, i.e., “intentionally or

knowingly caus[ing] bodily injury,” instead of the nature of his conduct.         A

culpable mental state of “knowingly” was correctly defined in the jury charge,

limited to the result of appellant’s conduct. And, most importantly, appellant’s

defense focused on his assertions that the complainant was the aggressor and he

did not engage in the complained-of conduct that caused the complainant’s

injuries. His defense was not that he engaged in the conduct, but did not intend to

cause the complainant bodily injury.

                                          15
      Accordingly, we hold that appellant has failed to meet his burden that there

was a “reasonable probability that but for the error, the result would have been

different.” See Green, 891 S.W.2d at 299 (concluding no reasonable probability

that but for counsel’s error, result would have been different when abstract

definition of culpable mental state included nature of conduct element but

application paragraph focused jury on result of conduct).

      We overrule appellant’s second issue.

                                   Conclusion

      We affirm the judgment of the trial court.




                                              Terry Jennings
                                              Justice

Panel consists of Justices Jennings, Sharp, and Brown.

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




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