                           NUMBER 13-17-00339-CR

                              COURT OF APPEALS

                    THIRTEENTH DISTRICT OF TEXAS

                      CORPUS CHRISTI - EDINBURG


AARON BROWN,                                                                Appellant,

                                          v.

THE STATE OF TEXAS,                                                          Appellee.


                     On appeal from the 24th District Court
                          of De Witt County, Texas.


                          MEMORANDUM OPINION
  Before Chief Justice Valdez and Justices Contreras and Benavides
           Memorandum Opinion by Chief Justice Valdez

       Appellant Aaron Brown appeals from his conviction of one count of robbery, a first-

degree felony enhanced under the habitual felon statute. See TEX. PENAL CODE ANN.

§§ 12.42(b), 29.02 (West, Westlaw through 2017 1st C.S.). Appellant was sentenced to

thirty-seven years’ incarceration. By two issues, appellant contends that the evidence is

insufficient and that there is jury charge error. We affirm.
                                         I.       PERTINENT FACTS

        Steven Tyler testified that on August 10, 2016, while he was at a bar having a

drink, appellant approached him, and they started talking. Both men were drinking beer.

Tyler stated that he agreed to give appellant a ride home in his wife’s vehicle.

        Tyler said that he drove for a long while into the country and that he had not

expected to drive so far. According to Tyler, when they reached “civilization,” he decided

to stop his vehicle at a convenience store because he saw a police officer parked there

and thought it was a safe place to stop. 1

        Tyler explained that when he stopped the vehicle, he asked appellant to exit the

vehicle, but appellant did not want to get out; therefore, Tyler exited the vehicle, went to

the passenger side, opened the door, again asked appellant to get out, and appellant

eventually exited the vehicle. Tyler testified that he then turned around and began

walking, and he felt appellant hit him on the back, right side of his head, around the ear

area. Tyler lost consciousness. Tyler stated that when the emergency workers arrived

he was disoriented. Tyler suffered a concussion, loss of memory, pain in the neck, and

his clavicle was broken. Tyler stated that after appellant hit him, appellant took his wife’s

vehicle without Tyler’s permission. Tyler explained that the vehicle was later found “not

too far away” from the convenience store without any gas. Tyler recovered the vehicle

“[d]ays later” from the Victoria Police Department. 2




        1   Once Tyler parked, the police officer left the convenience store.
        2 During Tyler’s testimony, the trial court admitted State’s exhibit number 1, which is a video of the
incident taken by a camera at the convenience store. Tyler described the incident depicted in the video as
it was played for the jury. Tyler’s description of the incident was consistent with his prior testimony.


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       Augustin Pineda testified that he witnessed the incident that occurred at the

convenience store on August 10, 2016. Pineda stated that he saw Tyler’s vehicle arrive

at the convenience store and that there were two men inside the vehicle arguing.

According to Pineda, he heard Tyler tell appellant that he had already brought appellant

“all the way to Yoakum” and “I want you to get out of my car.” Pineda testified that Tyler

said, “[T]hat’s enough, I done did enough [sic] for you, get out,” and “[N]o. I’m not taking

you to buy any drugs, I ain’t taking you anywhere else, get out of my car now.” According

to Pineda, appellant refused to get out of Tyler’s vehicle, and the men kept arguing.

Pineda stated that Tyler exited his vehicle, went to the passenger side, opened the door,

and told appellant “please get the hell out of my car or I’m going to call the cops, I am not

taking you anywhere else, this is the end right here, this is it, get out.” Pineda observed

that appellant “act[ed] like [he was] going to grab his things out of the car[,]” but instead,

he stepped out of the vehicle, “whack[ed]” Tyler “across the head[,]” and knocked Tyler

out.

       Pineda stated he dropped his merchandise, ran to Tyler’s vehicle, and pushed

appellant away from Tyler. Pineda testified that when appellant pushed back, Pineda hit

appellant and appellant fell next to Tyler. Appellant started pushing Pineda and attempted

to jump in the car. Pineda prevented appellant from getting in the car “maybe twice”;

however, according to Pineda, appellant eventually got in the vehicle and drove away.

Pineda testified that some of the convenience store cashiers were also attempting to stop




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appellant from leaving and that when appellant drove off, he “almost ran into the store”

and the cashiers with the vehicle. 3

                               II.     SUFFICIENCY OF THE EVIDENCE

        By his first issue, appellant contends that there is no evidence that a theft occurred

because the State failed to prove that appellant either (1) withheld the property from the

owner permanently or for an extended period of time that a major portion of the value or

enjoyment of the property was lost to the owner, or (2) disposed of the property in a

manner that made its recovery by the owner unlikely. See id. § 31.01(2) (West, Westlaw

through 2017 1st C.S.).

A.      Standard of Review and Applicable Law

        To determine whether the evidence is sufficient, we consider all the evidence in

the light most favorable to the verdict and determine whether a rational fact finder could

have found the essential elements of the crime beyond a reasonable doubt based on the

evidence and reasonable inferences from that evidence. Whatley v. State, 445 S.W.3d

159, 166 (Tex. Crim. App. 2014); Brooks v. State, 323 S.W.3d 893, 898–99 (Tex. Crim.

App. 2010) (plurality op.). The fact finder is the exclusive judge of the facts, the credibility

of witnesses, and the weight to be given their testimony. Brooks, 323 S.W.3d at 899. We

resolve any evidentiary inconsistencies in favor of the judgment. Id.

        In our sufficiency review, “direct evidence of the elements of the offense is not

required.” Hooper v. State, 214 S.W.3d 9, 15 (Tex. Crim. App. 2007). Circumstantial

evidence is as probative as direct evidence, and juries are permitted to make reasonable



         3 The State played the video once more for the jury. Pineda described the incident as it occurred

in the video. The video was consistent with his testimony.


                                                        4
inferences from the evidence presented at trial and in establishing the defendant’s guilt.

Id. “Circumstantial evidence alone can be sufficient to establish guilt.” Id. “[T]he lack of

direct evidence is not dispositive of the issue of a defendant’s guilt.” Guevara v. State,

152 S.W.3d 45, 49 (Tex. Crim. App. 2004). “Each fact need not point directly and

independently to the guilt of the appellant, as long as the cumulative force of all the

incriminating circumstances is sufficient to support the conviction.” Thomas v. State, 444

S.W.3d 4, 8 (Tex. Crim. App. 2014); Winfrey v. State, 393 S.W.3d 763, 768 (Tex. Crim.

App. 2013).

       Sufficiency is measured by the elements of the offense as defined by a

hypothetically correct jury charge. Villarreal v. State, 286 S.W.3d 321, 327 (Tex. Crim.

App. 2009); Malik v. State, 953 S.W.2d 234, 240 (Tex. Crim. App. 1997) (en banc). “Such

a 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.” Villarreal, 286 S.W.3d at 327; see Malik, 953 S.W.2d at 240. A

robbery occurs, as charged in this case, when a person in the course of committing theft

with the intent to obtain or maintain control of the property either (1) intentionally,

knowingly, or recklessly causes bodily injury to another. TEX. PENAL CODE ANN. § 29.02.

A person commits theft if that person unlawfully appropriates property with the intent to

deprive the owner of that property. Id. § 31.03(a) (West, Westlaw through 2017 1st C.S.).

Deprive means to (1) “withhold property from the owner permanently or for so extended

a period of time that a major portion of the value or enjoyment of the property is lost to

the owner,” (2) “restore property only upon payment of reward or other compensation,” or



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(3) “dispose of property in a manner that makes recovery of the property by the owner

unlikely.” Id. § 31.01(2).

B.     Discussion

       As we understand it, appellant argues that the State did not prove that he deprived

Tyler of the vehicle. However, for purposes of the offense of theft, “[d]eprivation is not an

element of intent to deprive; therefore, the State need not prove actual deprivation . . . to

prove intent to deprive.” Rowland v. State, 744 S.W.2d 610, 612 (Tex. Crim. App. 1988).

And, “[w]hile evidence of actual deprivation may be evidence of intent to deprive, other

evidence may also indicate whether intent to deprive exists.” Id.

       Viewed in the light most favorable to the prosecution, the evidence showed that

appellant struck Tyler on the head and then took the vehicle without permission when

Tyler lost consciousness. In addition, after taking the vehicle, appellant did not return it

to Tyler, and instead he abandoned it when it ran out of gas. We conclude that from this

evidence a rational finder of fact could have reasonably inferred that appellant intended

to deprive Tyler of the vehicle. See Guevara, 152 S.W.3d at 50 (explaining that intent

may be inferred from circumstantial evidence such as acts, words, and the conduct of the

appellant); Villarreal v. State, 504 S.W.3d 494, 511 (Tex. App.—Corpus Christi 2016, no

pet.); Cooper v. State, 29 S.W.3d 901, 904 (Tex. App.—Beaumont 2000), rev’d on other

grounds, 67 S.W.2d 221 (Tex. Crim. App. 2002) (determining that evidence that the

appellant took his uncle’s vehicle after striking him several times and that the appellant

was apprehended because the vehicle broke down sufficiently supported the jury’s finding

that he had the intent to deprive). Therefore, the evidence is sufficient to support the

challenged element. We overrule appellant’s first issue.



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                                   III.   CHARGE ERROR

       By his second issue, appellant contends for the first time on appeal that there is

error in the jury charge which caused egregious harm. Specifically, appellant argues that

error occurred when the trial court failed “to instruct the jury as to which elements of the

charged offense each defined mental state applied.”

A.     The Charge

       The abstract portion of the charge defined the culpable mental states as follows:

             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.

              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 recklessly, or is reckless, with respect to
       circumstances surrounding his conduct or the result of his conduct when he
       is aware of but consciously disregards a substantial and unjustifiable risk
       that the circumstances exist or the result will occur. The risk must be of
       such a nature and degree that its disregard constitutes a gross deviation
       from the standard of care that an ordinary person would exercise under all
       circumstances as viewed from the actor’s standpoint.

               ‘Theft’ means the unlawful appropriation of the property of another
       with intent to deprive the owner of said property.

       The application paragraph of the charge states the following:

               Now, if you find from the evidence beyond a reasonable doubt that
       on or about the 10th day of August, A.D. 2016, in DeWitt County, Texas, as
       alleged in the indictment, the defendant, Aaron Brown, while in the course
       of committing theft of property and with intent to obtain or maintain control
       of the property, intentionally or knowingly or recklessly cause[d] bodily injury
       to Steven Tyler by striking with his hands, then you will find the defendant
       guilty of robbery as alleged in the indictment.

B.     Applicable Law and Standard of Review




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        There are three conduct elements that may apply to the mental states relevant to

criminal offenses: (1) nature of the conduct; (2) result of the conduct; and (3)

circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03 (West, Westlaw

through 2017 1st C.S.); McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989).

Nature-of-the-conduct offenses criminalize certain acts. McQueen, 781 S.W.2d at 603.

Result-of-the-conduct offenses criminalize the results of certain acts. Id. Circumstances-

surrounding-the-conduct offenses criminalize behavior based upon the circumstances in

which the act was done. Id. “An offense may contain any one or more of these ‘conduct

elements’ which alone or in combination form the overall behavior which the Legislature

has intended to criminalize, and it is those essential ‘conduct elements’ to which a

culpable mental state must apply.” Id.

        Robbery contains all three conduct elements. Ash v. State, 930 S.W.2d 192, 195

(Tex. App.—Dallas 1996, no pet.). First, “the State is required to prove that appellant

‘caused bodily injury’; this refers to a result of the conduct.” Id. Next, “[t]he portion of the

charge requiring that the jury find that appellant caused the bodily injury ‘in the course of

committing theft’ refers to the circumstances surrounding the assaultive conduct.” Id.

Finally, “reference to ‘unlawful appropriation’ refers to the nature of the conduct.” 4 Id.

        In Patrick v. State, the jury charge included all three conduct elements in the

definitions of intentionally, knowingly, and recklessly. 906 S.W.2d 481, 491 (Tex. Crim.

App. 1995) (en banc). The court determined that it was not error for the trial court to

include all three conduct elements because the charged offense included all three. Id.



       4 A person commits theft if that person unlawfully appropriates property with the intent to deprive

the owner of that property. TEX. PENAL CODE ANN. § 31.03(a) (West, Westlaw through 2017 1st C.S.).


                                                        8
However, the court held that the trial court erred by “not limiting the additional language

concerning the culpable mental state to proving the conduct element of the underlying

offense.” Id. at 492. Thus, when the trial court includes all three conduct elements in the

definitions of the mental states, it is error if the trial court fails to limit the conduct elements

to the proper culpable mental states of the application portion of the charge. Id.

       Nonetheless, the Patrick court determined that “no harm resulted from the [trial]

court’s failure to limit the definitions of culpable mental states to proving the conduct

element of the underlying offense . . . because the facts, as applied to the law in the

application paragraph, pointed the jury to the appropriate portion of the definitions.” Id.

at 493. The court reasoned that it was apparent “which conduct element applies to which

element of the offense” because the application paragraph stated that the appellant “did

intentionally cause the death of [the victim]” and “[t]he term intentionally directly modifies

the phrase ‘cause the death.’” Id. The court stated, “Referring back to the definitions of

culpable mental states, it is obvious that the ‘result of conduct’ and cause the result

language are the applicable portions of the full code definitions.” Id.

       “For unpreserved charge error to be reversible, the error must have been so

harmful that the defendant was denied a fair and impartial trial.” Ash, 930 S.W.2d at 195

(citing Patrick, 906 S.W.2d at 492; Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim.

App. 1984)). The appellant must show that he has suffered actual “egregious” harm.

Almanza, 686 S.W.2d at 171. In determining whether the error was egregious, we must

examine the entire jury charge. See id. We must consider the following: (1) the charge

itself; (2) the state of the evidence including contested issues; (3) argument of counsel;

and (4) any other relevant information. Ash, 930 S.W.2d at 195 (citing Hutch v. State,



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922 S.W.2d 166, 171 (Tex. Crim. App. 1996); Bailey v. State, 867 S.W.2d 42, 43 (Tex.

Crim. App. 1993)).

C.     Discussion

       In this case, the trial court included multiple conduct elements in the abstract

portion of the charge. As robbery includes all three conduct elements, the trial court did

not err on that basis. See Ash, 930 S.W.2d at 195; see also Patrick, 906 S.W.2d at 491.

However, the trial court in this case did not limit the conduct elements to the proper

culpable mental states of the application portion of the charge. See Patrick, 906 S.W.2d

at 491; Ash, 930 S.W.2d at 195 (“[A] court errs in failing to limit the definitions to the

conduct element or elements of the offense to which they apply.”). Thus, we conclude

the trial court erred. See Patrick, 906 S.W.2d at 493; Ash, 930 S.W.2d at 195; see also

Fields v. State, 966 S.W.2d 736, 739 (Tex. App.—San Antonio 1998), rev’d on other

grounds, 1 S.W.3d 687 (Tex. Crim. App. 1999) (en banc) (agreeing with the appellant that

a proper jury charge, which includes a crime that includes all three conduct elements,

would state: “‘The following definition applies to the mental state in causing or placing

another in fear of bodily injury: A person acts ‘intentionally,’ or with intent, with respect to

a result of his conduct when it is his conscious objective or desire to cause the result,’

and so on for each conduct element”).

       Nonetheless, we conclude that there was no egregious harm because the

application paragraph stated that the jury could find appellant guilty only if he intentionally,

knowingly, or recklessly caused serious bodily injury. Thus, referring to the definitions of

the culpable mental states, it is obvious that the “result of conduct” and “cause the result”

language are the applicable portions of the full code definitions. See Patrick, 906 S.W.2d



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at 493. Thus, like in Patrick, the facts, as applied to the law in the application paragraph,

pointed the jury to the appropriate portion of the definitions. See id.; see also Ash, 930

S.W.2d at 195 (finding no egregious harm in the jury charge that contained a similar

application paragraph). 5 Also, during closing argument, the State clarified that the jury

had to determine that appellant acted intentionally, knowingly, or recklessly when he

struck Tyler on the back of the head. And, like in Ash, there is nothing in this record

showing that the jury was so confused by the complained-of instruction that appellant was



       5   Specifically, the application paragraph in Patrick stated:

       To warrant a conviction of the defendant, [appellant], of capital murder, you must find from
       the evidence beyond a reasonable doubt not only that on the occasion in question the
       defendant, [appellant], was engaged in the commission or attempted commission of the
       felony offense of burglary of a habitation of [the deceased], as defined in the charge, but
       also that during the commission of the burglary of a habitation or attempted commission
       thereof, if any, the defendant, [appellant], caused the death of [the deceased], by cutting
       said [deceased] with a knife, a deadly weapon, or by striking said [deceased] with a blunt
       object, a deadly weapon, the exact nature and description of which is unknown to the Grand
       Jurors, with the intention of thereby killing said [deceased]. Unless you find from the
       evidence beyond a reasonable doubt that the [appellant], on said occasion, specifically
       intended to kill the said [deceased] when he cut said [deceased] with a knife, a deadly
       weapon, or when he struck said [deceased] with a blunt object, a deadly weapon, the exact
       nature and description of which is unknown to the Grand Jurors, if he did cut said
       [deceased] with a knife, a deadly weapon, or strike [the deceased] with a blunt object, a
       deadly weapon, the exact nature and description of which is unknown to the Grand Jurors,
       you cannot convict the [appellant] of the offense of capital murder.

Patrick v. State, 906 S.W.2d 481, 492–93 (Tex. Crim. App. 1995).

       The application paragraph in Ash stated:

       Now bearing in mind the foregoing instructions, if you believe from the evidence beyond a
       reasonable doubt that [the appellant], Edward Steven Ash, either acting alone or with
       another as a party to the offense as that term is herein defined, on or about the 28th day
       of June, 1994, in the County of Dallas and State of Texas, did then and there while in the
       course of committing theft and with intent to obtain or maintain control of the property of
       Dalhia Jan Richardson, hereinafter called complainant, the said property being a purse or
       current money of the United States of America, without the effective consent of said
       complainant and with intent to deprive the said complainant of said property, did then and
       there knowingly or intentionally cause bodily injury to the said complainant, by striking said
       complainant's head repeatedly against some pavement, you will find the defendant guilty
       of the offense of robbery, as included in the indictment, and you will make no finding in
       your verdict as to punishment.

Ash v. State, 930 S.W.2d 192, 194 (Tex. App.—Dallas 1996, no pet.).


                                                           11
denied a fair and impartial trial. See Herrera v. State, 527 S.W.3d 675, 679 (Tex. App.—

Houston [14th Dist.] 2017, no pet.) (citing Ash, 930 S.W.2d at 195). Moreover, appellant’s

mental state was not seriously contested at trial. 6 See id.; Ash, 930 S.W.2d at 195.

        For these reasons, we conclude the record does not show that the charge error

resulted in harm so egregious that appellant did not have a fair and impartial trial. See

Herrera, 527 S.W.3d at 679. We overrule appellant’s second issue.

                                           IV.      CONCLUSION

        We affirm the trial court’s judgment.

                                                                    s/ Rogelio Valdez
                                                                    ROGELIO VALDEZ
                                                                    Chief Justice


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

Delivered and filed the
19th day of December, 2018.




        6 At trial, appellant did not contest that he took the vehicle without Tyler’s permission. Specifically,
appellant stated that he abandoned the vehicle because he “realized that taking the property all the way
home, it didn’t belong to me and just to fear [sic] . . . of getting locked up again.”


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