                                  IN THE
                          TENTH COURT OF APPEALS

                                 No. 10-17-00138-CR

BONNIE ALLEN THOMAS,
                                                        Appellant
v.

THE STATE OF TEXAS,
                                                        Appellee



                            From the 18th District Court
                              Johnson County, Texas
                               Trial Court No. F50926


                           MEMORANDUM OPINION

       Appellant Bonnie Allen Thomas was convicted of carrying a weapon in a

prohibited place and sentenced to five years’ probation.    Thomas challenges her

conviction in five issues. We will affirm.

                                       Background

       The underlying facts are not in dispute. Thomas appeared before 18th Judicial
District Court Judge John E. Neill1 in a family-law matter. After a status hearing, Judge

Neill verbally ordered Thomas and her ex-husband to surrender their firearms to their

respective attorneys. Thomas informed the trial court that she owned and/or possessed

only one firearm. Thomas surrendered that weapon to her attorney, who filed an

affidavit acknowledging the same with the trial court on August 31, 2015.

        Thomas subsequently told her lawyer that she was in possession of another

firearm. On October 21, 2015, Thomas entered the Guinn Justice Center carrying the

firearm inside her purse. Thomas went through security screening and walked toward

the elevators before being stopped by security officers, who asked her to return to the

screening area. The officer escorting Thomas back to the security station told Thomas

that he needed to search her purse. As the officer reached for Thomas’s purse, she ran

through the metal detector and out the front doors. One of the security officers detained

Thomas as she reached the bottom of the front steps. The security officers then recovered

a .22 caliber revolver from Thomas’s purse. Thomas was placed under arrest.

                                                   Issues

        Thomas presents the following issues:2

        1.        Testimony by the recused trial judge created prejudicial error.

        2.        The State failed to establish recklessness because the alleged underlying
                  “order” was void and not properly proved.

1
  Although initially assigned to Thomas’s criminal case, Judge Neill recused himself. Judge Neill was
appointed and sworn in as a Justice to the Tenth Court of Appeals on February 20, 2019. Justice Neill
recused himself from this matter on April 5, 2019.

2 The issues listed in the “Issues Presented” section of Thomas’s brief do not coincide with the issues listed
in the table of contents or in the headings included in the “Argument” section. To the extent additional
issues are raised in the “Issues Presented” section, they are not properly briefed and are overruled.

Thomas v. State                                                                                        Page 2
       3.         The State failed to establish a violation of § 46.03(a)(3) of the Texas Penal
                  Code as worded.

       4.         Section 46.03(a)(3) of the Texas Penal Code is unconstitutionally void for
                  vagueness.

       5.         Section 46.03(a)(3) of the Texas Penal Code, as applied, violates the
                  separation of powers clause in the Texas Constitution.

                                           Discussion

       A. Constitutionality of § 46.03. We begin with Thomas’s final three issues that

relate to the constitutionality and application of § 46.03 of the Penal Code. TEX. PENAL

CODE ANN. § 46.03. In her fourth issue, Thomas asserts that § 46.03 is unconstitutionally

vague. Thomas asserts in her fifth issue that an edict by the sitting judges of Johnson

County that applied § 46.03 to the Guinn Justice Center violated the separation of powers

clause of the Texas Constitution. In her third issue, Thomas argues that the State failed

to establish a violation of § 46.03 because the language of the statute does not apply to the

entryway to the Guinn Justice Center and that the attempt by the sitting judges to change

the definition of “premises” is void and invalid.

       Section 46.03 provides, in pertinent part: “A person commits an offense if the

person intentionally, knowingly, or recklessly possesses or goes with a firearm … on the

premises of any government court or offices utilized by the court, unless pursuant to

written regulations or written authorization of the court. . . .” Id. § 46.03(a)(2). Section

46.035(f)(3) defines “premises” as “a building or a portion of a building. The term does

not include any public or private driveway, street, sidewalk or walkway, parking lot,

parking garage, or other parking area.” Id. § 46.035(f)(3).

Thomas v. State                                                                          Page 3
       When the constitutionality of a statute is attacked, the reviewing court commences

with the presumption that the statute is valid and that the Legislature did not act

unreasonably or arbitrarily in enacting the statute. Peraza v. State, 467 S.W.3d 508, 514

(Tex. Crim. App. 2015); Ex parte Granviel, 561 S.W.2d 503, 511 (Tex. Crim. App. 1978). The

burden is upon the party challenging a statute to establish its unconstitutionality. Peraza,

467 S.W.3d at 514. “We must seek to interpret a statute such that its constitutionality is

supported and upheld.” Id. If a statute is capable of two constructions, “one of which

sustains its validity, the courts will give to it the interpretation that sustains its validity.”

Granviel, 561 S.W.3d at 511.

       A facial challenge is an attack on a statute itself as opposed to a particular

application. Peraza, 467 S.W.3d at 514 (quoting City of Los Angeles v. Patel, —– U.S. —–, —

–, 135 S.Ct. 2443, 2449, 192 L.Ed.2d 435 (2015)). We have articulated how we review a

facial challenge:

       To prevail on a facial challenge to a statute, a party must establish that the
       statute always operates unconstitutionally in all possible circumstances.
       State v. Rosseau, 396 S.W.3d 550, 557 (Tex. Crim. App. 2013). A facial
       challenge to a statute is the most difficult challenge to mount successfully
       because the challenger must establish that no set of circumstances exists
       under which the statute will be valid. Santikos v. State, 836 S.W.2d 631, 633
       (Tex. Crim. App. 1992). Whether a statute is facially unconstitutional is a
       question of law that we review de novo. Ex parte Lo, 424 S.W.3d 10, 14 (Tex.
       Crim. App. 2013).

Gerron v. State, 524 S.W.3d 308, 316 (Tex. App.—Waco 2016, pet. ref’d). The party facially

challenging a statute must establish that the statute “could never be constitutionally

applied to any defendant under any set of circumstances.” Rosseau, 396 S.W.3d at 557.



Thomas v. State                                                                           Page 4
                  1. Vagueness. Thomas first asserts that § 46.03 is unconstitutionally vague.

Assuming without deciding that Thomas has preserved both an actual and facial

constitutional claim, we find that the statute passes constitutional muster. Thomas

specifically argues that the definition of “premises” is insufficient to provide notice of

what the statute prohibits.

       A statute is unconstitutionally vague if “its prohibitions are not clearly defined.”

State v. Markovich, 77 S.W.3d 274, 279 (Tex. Crim. App. 2002) (quoting Grayned v. City of

Rockford, 408 U.S. 104, 108, 92 S.Ct. 2294, 2298, 33 L.Ed.2d 222 (1972)). A reviewing court

should use the following analysis in construing the meaning of a Texas statute:

       Under the canons of statutory construction, we are to construe a statute
       according to its plain language, unless the language is ambiguous or the
       interpretation would lead to absurd results that the legislature could not
       have intended. To do so, we focus on the literal text of the statutory
       language in question, reading it in context and construing it according to
       the rules of grammar and common usage. In an attempt to discern the fair,
       objective meaning of the text at the time of its enactment, we assume that
       every word has been used for a purpose and that each word, phrase, clause,
       and sentence should be given effect if reasonably possible. Where the
       statute is clear and unambiguous, the Legislature must be understood to
       mean what it has expressed, and it is not for the courts to add or subtract
       from such a statute. It is only when the application of the statute's plain
       language would lead to absurd consequences that the Legislature could not
       possibly have intended, that a court, out of absolute necessity, may stray
       from applying the literal language and resort to such extra-textual factors
       as legislative history, intent, or purpose.

Tapps v. State, 294 S.W.3d 175, 177 (Tex. Crim. App. 2009) (internal quotation marks,

footnotes, and citations omitted).

       “A statute is void for vagueness if it fails to define the criminal offense with
       sufficient definiteness that ordinary people can understand what conduct
       is prohibited and in a manner that does not permit arbitrary and
       discriminatory enforcement.” Lawrence v. State, 240 S.W.3d 912, 915 (Tex.

Thomas v. State                                                                           Page 5
        Crim. App. 2007). Because a party must show that the law is impermissibly
        vague in all of its applications, “a plaintiff who engages in some conduct
        that is clearly proscribed cannot complain of the vagueness of the law as
        applied to the conduct of others. A court should therefore examine the
        complainant's conduct before analyzing other hypothetical applications of
        the law.” Village of Hoffman Estates v. Flipside, Hoffman Estates, Inc., 455 U.S.
        489, 495, 102 S.Ct. 1186, 1191, 71 L.Ed.2d 362 (1982).

Gerron, 524 S.W.3d at 316. 3

        As noted, § 46.035(f)(3) defines “premises” as “a building or a portion of a

building. The term does not include any public or private driveway, street, sidewalk or

walkway, parking lot, parking garage, or other parking area.” The Texarkana Court has

noted that “[t]he plain meaning of the phrase ‘building or a portion of a building’ is clear

and unambiguous.” Dupree v. State, 433 S.W.3d 788, 792 (Tex. App.—Texarkana 2014, no

pet.)

                The plain meaning of the phrase “building or a portion of a building”
        is clear and unambiguous. See id. While the meaning most typically
        ascribed to the term “premises” would likely include more than a building
        or a portion of a building, our inquiry is not whether the Legislature's
        definition of premises comports with ordinary usage; rather, we are to
        determine if the plain meaning of the Legislature's definition is clear and
        unambiguous. We find that it is.
                As further support for this interpretation, we look to the second
        sentence of the definition of “premises,” which unambiguously establishes
        that the term premises does not include “any public or private driveway,
        street, sidewalk or walkway, parking lot, parking garage, or other parking
        area.” TEX. PENAL CODE ANN. §§ 46.03(c)(1), 46.035(f)(3). It is clear, then,
        that the possession of a firearm on a street, sidewalk, or parking lot, or even
3
  Thomas argues that Hoffman requires a more stringent test when a law inhibits the exercise of a
constitutionally protected right, such as, in this case, her Second Amendment right to bear arms. Hoffman,
455 U.S. at 499. However, the more stringent application appears to be limited to the implication of First
Amendment rights. See Wagner v. State, 539 S.W.3d 298, 313-14 (Tex. Crim. App. 2018); Lo, 424 S.W.3d at
15 (“The Supreme Court applies the ‘most exacting scrutiny to regulations that suppress, disadvantage, or
impose differential burdens upon speech because of its content.’”) (quoting Turner Broadcasting Sys., Inc. v.
FCC, 512 U.S. 622, 642, 114 S.Ct. 2445, 2459, 129 L.Ed.2d 497 (1994)). In all other instances, a court “should
uphold a vagueness challenge only if the statute is impermissibly vague in all of its applications.” Hoffman,
455 U.S. at 499.

Thomas v. State                                                                                        Page 6
       in a parking garage—which may well be a building—is not a violation of
       Section 46.03 of the Texas Penal Code. We find nothing in this portion of
       the statutory definition of premises to suggest that we should deviate from
       the plain meanings of the words “building or a portion of a building.”

Id. Although the Dupree Court dealt with a prohibited weapon on the grounds of a school,

the definition of “premises” applies equally to court facilities.

       “Premises” does not include the exterior of a court facility, but does include areas

inside a “building or a portion of a building.” The common areas inside a building that

are adjacent to courtrooms and offices used by the court are clearly part of the definition

of “premises.” This is supported by the legislative history of § 46.03, which expanded the

definition of the prohibited area from a “government court or offices utilized by the

court” to the premises of any government court or offices utilized by the court, in

conjunction with the definition of premises in § 46.035(f). See Act of May 16, 2003, 78th

Leg., R.S., ch. 1178, § 3(a)(3), sec. 46.03(a)(3), 2003 Tex. Gen. Laws 1042, 1178.

       Darby Tucker, a deputy with the Johnson County Sheriff’s Department, who is

assigned to the Guinn Justice Center, testified that the security screening area is directly

in front of and to the right of the 413th district court. Judge Neill also testified, without

objection, that the Guinn Justice Center is considered the premises of a government court.

Individuals who pass through the screening area are thus in a portion of the premises of

a building housing a government court. Doyle Shastid, who also works security at the

Guinn Justice Center, testified that there is also a warning sign posted at the bottom of

the stairs leading into the Guinn Justice Center. A photograph of the sign was introduced

as Exhibit 7 by the State and advises, in English and Spanish, that no one may enter the


Thomas v. State                                                                        Page 7
premises with a firearm. The sign further notes, “All persons are notified that this

building has a governmental court and offices utilized by the court.”

        Thomas entered the Guinn Justice Center with a firearm in her purse despite the

posted warning. When Thomas passed through the entry doors into the screening area,

she was within an area adjacent to a governmental court. Thomas was, therefore,

engaged in conduct that is clearly proscribed and cannot complain that § 46.03 is vague

as it might apply to others.

        Thomas argues that opinions from the Attorney General’s Office support her

assertion that § 46.03 is vague. See Tex. Att’y Gen. Op. Nos. KP-0047 and KP0049 (2015)

and Tex. Att’y Gen. Op. No. KP-0098 (2016). While Attorney General opinions may be

persuasive and are entitled to due consideration, they are not binding on the courts. Ex

parte Schroeder, 958 S.W.2d 811, 812 n.2 (Tex. Crim. App. 1997) (per curiam); see also Skypark

Aviation, LLC v. Lind, 523 S.W.3d 869, 874 (Tex. App.—Eastland 2017, no pet.).

Additionally, the attorney general opinions cited by Thomas deal with the ability of a

licensed handgun holder to access portions of a multi-purpose government building that

are not included in the definition of “premises” in § 46.03. These are inapposite because

there is nothing in the record to reflect that Thomas is a handgun license holder, that

there are offices in the Guinn Justice Center that are unrelated to court operations, or that

if there are such offices, they are close to the security screening area.4


4
  Thomas includes a number of photographs allegedly of the interior of the Guinn Justice Center in the
appendix to her reply brief. These photographs are not part of the record and cannot be considered for the
first time on appeal. See Davis v. State, 227 S.W.3d 733, 737 (Tex. Crim. App. 2007) (appellate court properly
declined to take judicial notice of exhibits that were not considered by the trial court and were not part of
the appellate record); Jack v. State, 149 S.W.3d 119, 121 n.1 (Tex. Crim. App. 2004) (appellate courts may not

Thomas v. State                                                                                        Page 8
        Thomas’s fourth issue is overruled.

                  2. Separation of Powers. Thomas’s fifth issue argues that the judges of

Johnson County violated the separation of powers doctrine in defining the entire Guinn

Justice Center as being part of the “premises”5 of a governmental court. Thomas’s third

issue appears to be that the definition in the Johnson County decree is also

unconstitutional as applied to her.

        The designation signed by the judges in office at that time notes:

               WHEREAS, under Section 46.03 (a) (3) of the Texas Penal Code,
        firearms are prohibited on the premises of any governmental court or
        offices utilized by the court, unless pursuant to written regulations or
        written authorization of the court, and;

               WHEREAS, under Section 46.03 (f) of the Texas Penal Code, it is not
        a defense to prosecution that the actor possessed a handgun and was
        licensed to carry a concealed handgun under Subchapter H, Chapter 411,
        Government Code, and;

             WHEREAS, under Section 46.035 (f) (3) of the Texas Penal Code,
        “Premises” means a building or a portion of a building, and;

            WHEREAS, the Guinn Justice Center has been designated by the
        Commissioners Court of Johnson County as an Auxiliary Courthouse, and;

               WHEREAS, the 18th District Court, the 249th District Court, the
        413th District Court, County Court at Law Number One, and County Court
        at Law Number Two and their respective offices are located in the Guinn
        Justice Center; and,

               WHEREAS, in addition to the above named courts and their
        respective offices, two auxiliary courtrooms, a central jury room, the

consider factual assertions outside the appellate record; documents outside the record do not “concern[ ]
events or actions in the trial court and . . . cannot be considered for the truth of the matters asserted.”).

5The State argues that Thomas has failed to preserve this issue. However, an allegation of a violation of
the separation of powers doctrine is one of the few absolute, systemic requirements that may be raised for
the first time on appeal. See Henson v. State, 407 S.W.3d 764, 768 (Tex. Crim. App. 2013).

Thomas v. State                                                                                       Page 9
       District Attorney, the District Clerk, the County Attorney, the County Clerk
       and their respective offices are located in the Guinn Justice Center, and;

               WHEREAS, common areas such as hallways adjacent to the
       courtrooms, central jury room, and offices utilized by the court exist on each
       of the four floors of the Guinn Justice Center, and;

              WHEREAS, said common areas are used as waiting areas for those
       persons attending the courts and persons traveling to and from the courts
       and offices utilized by the courts, and;

              WHEREAS, emotions may and do affect the behavior of persons
       attending court hearings regarding criminal, civil, domestic, and juvenile
       matters, and;

             WHEREAS, safety is a concern for persons attending the courts,
       persons traveling to and from the courts and offices utilized by the courts,
       and persons who work at the Guinn Justice Center, and;

              WHEREAS, the presiding judges of the courts located in the Guinn
       Justice Center are of the opinion that for the safety and welfare of the
       general public and employees located at the Guinn Justice Center, that the
       common areas of the Guinn Justice Center such as the hallways adjacent to
       the courtrooms and offices utilized by the courts should be designated as
       premises of a government court and offices utilized by the court and
       therefore considered to be areas where firearms are prohibited pursuant to
       Section 46.03 (a) (3) of the Texas Penal Code.

              IT IS THEREFORE DESIGNATED AND DECREED, by the District
       Judges serving the District Court of Johnson County and the Judges serving
       the County Courts at Law of Johnson County that the common areas of the
       Guinn Justice Center such as hallways adjacent to the courtrooms and
       offices utilized by the courts are considered to be premises of a
       governmental court and offices utilized by the court and that pursuant to
       section 46.03 (a) (3) of the Texas Penal Code, firearms are prohibited in the
       Guinn Justice Center.

       Separation of powers is expressly guaranteed by the Texas Constitution, which

provides:

       The powers of the Government of the State of Texas shall be divided into
       three distinct departments, each of which shall be confided to a separate

Thomas v. State                                                                         Page 10
       body of magistracy, to wit: Those which are Legislative to one; those which
       are Executive to another, and those which are Judicial to another; and no
       person, or collection of persons, being of one of these departments, shall
       exercise any power properly attached to either of the others, except in the
       instances herein expressly permitted.

TEX. CONST. art. II, § 1.

       The separation of powers doctrine is violated “when one branch of government

assumes or is delegated a power ‘more properly attached’ to another branch.” Salinas v.

State, 523 S.W.3d 103, 106-07 (Tex. Crim. App. 2017) (quoting Lo, 424 S.W.3d at 28). In

order to establish a violation of separation of powers under the Texas Constitution, a

defendant must show: (1) that one branch has assumed, or has been delegated, to

whatever degree, a power that is more “properly attached” to another, or (2) that one

branch has so unduly interfered with the functions of another “so that the other branch

cannot effectively exercise its constitutionally assigned powers.” State v. Williams, 938

S.W.2d 456, 458 (Tex. Crim. App. 1997) (quoting Armadillo Bail Bonds v. State, 802 S.W.2d

237, 239 (Tex. Crim. App. 1990)). Thomas’s claims fall within the first category—that the

Johnson County judges usurped the power of the legislature in defining the word

“premises.” Accordingly, Thomas brings a facial challenge to the constitutionality of the

judicial decree. Peraza, 467 S.W.3d at 514.

       The Johnson County judges did not create a new definition of premises or

otherwise usurp the power of the legislature. The decree merely applies the language of

§§ 46.03(a)(3) and 46.035(f)(3) to the Guinn Justice Center. The decree does not expand

the definition of premises, but limits its application to common areas, such as hallways,

that are adjacent to the courtrooms and offices utilized by the courts. The decree does

Thomas v. State                                                                      Page 11
not expand that definition of premises beyond that covered by §§ 46.03(a)(3) and

46.035(f)(3).

       Additionally, as the State notes, Thomas has no basis for her separation of powers

claim because she was not arrested, indicted, or convicted as a result of the definition of

premises included in the Johnson County decree. We overrule Thomas’s fifth issue.

       In light of the foregoing, Thomas’s third issue is likewise without merit as the plain

language of § 46.003(a)(2), in conjunction with § 46.035(f)(3), covers the entryway to the

Guinn Justice Center where Thomas was found with a firearm. We overrule Thomas’s

third issue.

       B. Testimony by Recused Trial Judge. In her first issue, Thomas argues that the

trial court erred by allowing Judge Neill to testify. Thomas contends that Judge Neill’s

testimony was erroneous because he was allowed to testify regarding his interpretation

of the definition of “premises” as it related to Thomas’s location in the Guinn Justice

Center, that he was allowed to testify regarding his verbal order for Thomas and her ex-

husband to surrender their firearms to their attorneys, and that he was allowed to testify

regarding Thomas’s character.

       An appellate court reviews a trial court's ruling on the admission of evidence

under an abuse-of-discretion standard. Rhomer v. State, 569 S.W.3d 664, 669 (Tex. Crim.

App. 2019). A trial court abuses its discretion when it acts without reference to any

guiding rules and principles or acts arbitrarily or unreasonably. Id.

       Thomas’s claims in this regard have not been preserved. To preserve an error for

appellate review, a party must present a timely objection to the trial court, state the

Thomas v. State                                                                       Page 12
specific grounds for the objection, and obtain a ruling. TEX. R. APP. P. 33.1(a)(1); TEX. R.

EVID. 103(a)(1). See also Curry v. State, 910 S.W.2d 490, 497 (Tex. Crim. App. 1995); Ham v.

State, 355 S.W.3d 819, 825 (Tex. App.—Amarillo 2011, pet. ref’d). Although Thomas

objected when Judge Neill first began to testify, her objection was limited to the relevance

of Judge Neill’s testimony. Thomas’s relevance objections were overruled. At a hearing

outside the presence of the jury, Thomas’s attorney argued that the circumstances leading

to Judge Neill’s order to turn over the firearms should be excluded under Rule 404(b).

Prior to then, Judge Neill had testified without objection regarding the following: (1) the

Guinn Justice Center is considered the premises of a government court; (2) the verbal

order he gave to Thomas and her ex-husband to turn over any guns they owned or

possessed to their attorneys; (3) his concerns regarding the potential for violence in family

law cases; (4) the uniqueness of the situation in that this was the first time in his eighteen

years on the bench that he had directed the parties to turn over their firearms; and (5) he

received no notice from Thomas’s attorney that Thomas had possession of another

firearm. Any Rule 403 objections that Thomas raises on appeal regarding the foregoing

were not timely presented to the trial court.

       Thomas additionally argues that the trial court erred in admitting Judge Neill’s

testimony because it was in violation of Rule 605 of the Rules of Evidence. Rule 605

prohibits the presiding judge from testifying as a witness. As Judge Neill recused himself




Thomas v. State                                                                        Page 13
and did not preside over Thomas’s criminal trial, Rule 605 does not apply. See Hensarling

v. State, 829 S.W.3d 168, 170-71 (Tex. Crim. App. 1992). We overrule Thomas’s first issue.6

        C. Sufficiency/Defective Indictment. In her second issue, Thomas argues that the

evidence was legally insufficient to support her conviction and that the State failed to

establish recklessness because the alleged underlying order by Judge Neill was void and

not properly proved.

        The Court of Criminal Appeals has expressed our standard of review of a

sufficiency issue as follows:

                When addressing a challenge to the sufficiency of the evidence, we
        consider whether, after viewing all of the evidence in the light most
        favorable to the verdict, any rational trier of fact could have found the
        essential elements of the crime beyond a reasonable doubt. Jackson v.
        Virginia, 443 U.S. 307, 319, 99 S. Ct. 2781, 61 L. Ed. 2d 560 (1979); Villa v.
        State, 514 S.W.3d 227, 232 (Tex. Crim. App. 2017). This standard requires
        the appellate court to defer "to the responsibility of the trier of fact fairly 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. We may not re-weigh the evidence or substitute our judgment for that
        of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. App.
        2007). The court conducting a sufficiency review must not engage in a
        "divide and conquer" strategy but must consider the cumulative force of all
        the evidence. Villa, 514 S.W.3d at 232. Although juries may not speculate
        about the meaning of facts or evidence, juries are permitted to draw any
        reasonable inferences from the facts so long as each inference is supported
        by the evidence presented at trial. Cary v. State, 507 S.W.3d 750, 757 (Tex.
        Crim. App. 2016) (citing Jackson, 443 U.S. at 319); see also Hooper v. State, 214
        S.W.3d 9, 16-17 (Tex. Crim. App. 2007). We presume that the factfinder
        resolved any conflicting inferences from the evidence in favor of the verdict,
        and we defer to that resolution. Merritt v. State, 368 S.W.3d 516, 525 (Tex.
        Crim. App. 2012). This is because the jurors are the exclusive judges of the
        facts, the credibility of the witnesses, and the weight to be given to the

6
  In her reply brief, Thomas further argues that Judge’s Neill’s testimony was in violation of Article 38.05
of the Code of Criminal Procedure and Canon 2 of the Code of Judicial Conduct. We need not address new
issues raised in a reply brief. TEX. R. APP. P. 38.3; see In re M.D.G., 527 S.W.3d 299, 302-03 (Tex. App.—El
Paso 2017, no pet.).

Thomas v. State                                                                                     Page 14
       testimony. Brooks v. State, 323 S.W.3d 893, 899 (Tex. Crim. App. 2010).
       Direct evidence and circumstantial evidence are equally probative, and
       circumstantial evidence alone may be sufficient to uphold a conviction so
       long as the cumulative force of all the incriminating circumstances is
       sufficient to support the conviction. Ramsey v. State, 473 S.W.3d 805, 809
       (Tex. Crim. App. 2015); Hooper, 214 S.W.3d at 13.
               We measure whether the evidence presented at trial was sufficient
       to support a conviction by comparing it to "the elements of the offense as
       defined by the hypothetically correct jury charge for the case." Malik v.
       State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997). The hypothetically
       correct jury charge is one that "accurately sets out the law, is authorized by
       the indictment, does not unnecessarily increase the State's burden of proof
       or unnecessarily restrict the State's theories of liability, and adequately
       describes the particular offense for which the defendant was tried." Id.; see
       also Daugherty v. State, 387 S.W.3d 654, 665 (Tex. Crim. App. 2013). The "law
       as authorized by the indictment" includes the statutory elements of the
       offense and those elements as modified by the indictment. Daugherty, 387
       S.W.3d at 665.

Zuniga v. State, 551 S.W.3d 729, 732-33 (Tex. Crim. App. 2018). In this case, the only

disputed issue was Thomas’s intent in bringing the gun into the courthouse. Viewing all

of the evidence in the light most favorable to the verdict, any rational juror could have

found that Thomas’s actions in bringing the gun into the Guinn Justice Center were, at a

minimum, reckless.

       Thomas also argues that the indictment was defective because it did not allege

specific acts of recklessness. Thomas filed a motion to quash the indictment that was

denied by the trial court. A trial court’s ruling on a motion to quash an indictment is

subject to a de novo review because the sufficiency of an indictment is a question of law.

State v. Jarreau, 563 S.W.3d 477, 483 (Tex. App.—San Antonio 2018, pet. ref’d).

       Article 21.15 of the Code of Criminal Procedure provides:

       Whenever recklessness or criminal negligence enters into or is a part or
       element of any offense, or it is charged that the accused acted recklessly or

Thomas v. State                                                                         Page 15
       with criminal negligence in the commission of an offense, the complaint,
       information, or indictment in order to be sufficient in any such case must
       allege, with reasonable certainty, the act or acts relied upon to constitute
       recklessness or criminal negligence, and in no event shall it be sufficient to
       allege merely that the accused, in committing the offense, acted recklessly
       or with criminal negligence.

TEX. CODE CRIM. PROC. ANN. art. 21.15.

       In this case, the indictment alleged that Thomas acted intentionally and knowingly

as well as recklessly. When all three mental states are included in the indictment, Article

21.15 does not apply. Bartlett v. State, 249 S.W.3d 658, 672-73 (Tex. App.—Austin 2008,

pet. ref’d) (citing Crawford v. State, 646 S.W.2d 936, 937 (Tex. Crim. App. 1983)); see also

Benford v. State, No. 10-10-00294-CR, 2012 WL 1366569, at *4 (Tex. App.—Waco Apr. 18,

2012, no pet.) (mem. op., not designated for publication) (when indictment includes

intentionally and knowingly as well as recklessly, “we need not determine the

requirements of the indictment as if recklessly had been the only alleged culpable mental

state. . . .”).7 We overrule Thomas’s second issue.

                                             Conclusion

       Having overruled all of Thomas’s issues, we affirm the judgment of the trial court.




                                                       REX D. DAVIS
                                                       Justice




7 Thomas additionally argues that the State failed to prove recklessness because Judge Neill’s order
requiring her to give her firearm to her attorney was not in writing and was, therefore, void. As Thomas
was not charged with contempt of court, whether Judge Neill’s order was written or verbal is irrelevant.

Thomas v. State                                                                                 Page 16
Before Justice Davis,
       Justice Scoggins,8 and
       Judge Adams9
Affirmed
Opinion delivered and filed August 28, 2019
Do not publish
[CR25]




8The Honorable Al Scoggins, Senior Justice of the Tenth Court of Appeals, sitting by assignment of the
Chief Justice of the Texas Supreme Court. See TEX. GOV’T CODE ANN. §§ 74.003, 75.002, 75.003.

9The Honorable Gordon G. Adams, 169th Judicial District Court, sitting by assignment of the Chief Justice
of the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 74.003(h).

Thomas v. State                                                                                  Page 17
