Affirmed and Opinion Filed June 10, 2015




                                           S   In The
                                   Court of Appeals
                            Fifth District of Texas at Dallas
                                        No. 05-13-01186-CR

                                 ANDRE D. BERRY, Appellant
                                            V.
                                THE STATE OF TEXAS, Appellee

                          On Appeal from the 380th Judicial District Court
                                       Collin County, Texas
                              Trial Court Cause No. 380-82821-2012

                                MEMORANDUM OPINION
                               Before Justices Bridges, Lang, and Evans
                                      Opinion by Justice Bridges
       Andre D. Berry appeals his violation of a protective order conviction. A jury convicted

appellant, and the trial court sentenced him to four years’ confinement. In four issues, appellant

argues the sentence imposed by the trial court is illegal because it imposes felony punishment for

a misdemeanor conviction, the trial court erred in failing to include certain elements of the

offense in the application paragraph of the jury charge and in failing to restrict the definitions of

the applicable culpable mental states to the result of conduct components, and appellant suffered

egregious harm as a result of the trial court’s erroneous jury charge instructions. We affirm the

trial court’s judgment.

       Camilla Thornton married appellant for the first time in 1998. The couple divorced,

remarried, and divorced again in 2008. On June 5, 2012, the 417th District Court of Collin
County signed a protective order against appellant. On May 24, 2012, appellant was served with

a copy of the “Ex Parte Temporary Protective Order and Notice of Application for Protective

Order.” On July 6, 2012, appellant filed a pro se “motion of appeal” in the trial court seeking to

have the trial court’s order set aside; however, the order was not set aside.

       On September 18, 2012, Thornton went to a house in Plano to see a friend who had been

in a car accident. Thornton remembered that police were called to the house, and she was

injured. Thornton gave two statements saying appellant hit her.

       Plano police officer Raymond Yokel was dispatched to the house where Thornton was

injured. A call had come in about a male with a gun arguing with a female in front of the house.

When Yokel arrived at the house, another officer was already there, and they both approached

the house on foot. Yokel observed appellant yelling at a woman “in the yard across from him as

he was leaving the area headed towards a white pickup truck.” Appellant got in the passenger

side of the pickup and close the door. Yokel was watching appellant’s hands to see if he had a

weapon because the call stated there was a man with a gun. Another man was in the driver’s seat

of the pickup, and the engine was running. Other officers arrived and surrounded the pickup,

and Yokel opened appellant’s door and removed him from the pickup. Yokel searched appellant

but did not find a weapon. Yokel placed appellant in the back of his patrol car after another

officer handcuffed him.

       Yokel approached the woman, Thornton, who said her face was hurting badly. Thornton

“wasn’t really able to talk much.” Thornton “had a swelling appearing on her mouth and blood

all over her lips and she stated that she was in pain.” Yokel returned to his car, and appellant

initiated a conversation in which appellant stated he had received a phone call from Thornton

and that was why he was there. Appellant stated he could verify that Thornton called him, and

Yokel went to retrieve appellant’s cell phone from the pickup. Appellant said the number for

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“Junior” must have been the number Thornton called from.          Yokel called the number for

“Junior,” who said appellant was a friend of his and he knew who Thornton was, but he had not

spoken with either one of them all day. One of the other officers had run a criminal history on

appellant, and it revealed there was a protective order against appellant. Yokel transported

appellant to the police station and booked him into jail.

       Appellant was indicted on a charge of violation of a protective order. At trial, the State

introduced the testimony of William Kralemann, a friend of appellant’s. On September 18,

2012, Kralemann and appellant “were just going to hang out at one of [appellant’s] friend’s

house.” Kralemann drove appellant to the house where he was arrested, and they saw appellant’s

“ex old lady,” Thornton, sitting in her car parked in front of the house. Kralemann parked on the

other side of the street, and appellant got out to talk to Thornton. Kralemann stayed in the

pickup. Thornton was sitting on the passenger side of her car, and “her leg was hanging out.”

Appellant approached her and spoke with her, but things “escalated.”          Appellant slapped

Thornton in the face and “slammed the door on her leg.” Kralemann got out and “tried to break

it up,” succeeding in getting appellant to come back and get in Kralemann’s truck. Police arrived

and took appellant and Kralemann out of the truck. Kralemann was also arrested and charged

with drug possession.

       On cross-examination, Kralemann admitted he had six different pills and a prescription

bottle when he was arrested, but he only had a prescription for one of them: Klonopin. When

asked if he was a drug addict, Kralemann responded, “Maybe. I used to be.” On the night he was

arrested, Kralemann testified he might have taken “a couple of Flexerils” and “maybe a couple”

Klonopin.

       Thornton testified that, following this incident, she had married appellant again in

February 2013. Thornton did not remember if she told the police what happened or if she wrote

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a statement because she “passed out.” Thornton knew she was taken to the hospital but did not

“remember anything from that night because [she] passed out.” Thornton could not remember

making a statement to police, but the State introduced two written statements in which Thornton

said appellant had beaten her. Appellant also called Thornton as a witness and, when asked if

appellant hit her on September 18, 2013, she replied, “No, not that I believe.”

        The trial court admitted into evidence photographs of Thornton depicting her facial

injuries. The Plano Fire Department’s records that were admitted into evidence included under

description,

        COMPLAINT[:] “HE HIT ME IN MY FACE AND HEAD”

        SYMPTOMS[:] JAW SORE

        ***

        PATIENT STATED SHE HAD BEEN HIT WITH A FIST IN THE FACE, JAW,
        AND TOP OF HER HEAD. PATIENT HAD TO BE COMMUNICATED WITH
        VIA WRITING ON A PAPER DUE TO HER JAW PAIN.

Thornton’s medical records from her treatment immediately following the incident and transport

to Medical Center of Plano that were admitted into evidence contained the following history of

present illness:

        Chief Complaint- REPORTED PHYSICAL ASSAULT. Location of injuries-
        head, face and neck. This occurred just prior to arrival.

        Reported assailant (ex-husband). The patient sustained multiple blows with a fist.
        This is a reported assault. Occurred at home.

        The patient complains of moderate pain. The patient sustained a blow to the head
        and had loss of consciousness.

Some of the clinical impressions stated in the hospital’s medical records were:

        Minor closed head injury with loss of consciousness.
        Acute cervical strain.
        Multiple contusions to the head and face.
        Physical assault.



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       The jury charge in this case contained, among others, the following definitions:

       A person commits an offense if, in violation of a protective order, he intentionally
       or knowingly commits family violence.

       A person also commits an offense if, in violation of a protective order, he
       intentionally or knowingly communicates directly with a protected individual or a
       member of the family or household in a threatening or harassing manner; or goes
       near the protected individual in a manner specifically prohibited in the order; or
       goes near any of the places specifically prohibited in the order.

       A person also commits an offense if he intentionally or knowingly causes bodily
       injury to another.

       “Bodily injury” means physical pain, illness, or any impairment of physical
       condition.

       “Family violence” means an act by a member of a family or household against
       another member of the family or household that is intended to result in physical
       harm, bodily injury, assault, or sexual assault or that is a threat that reasonably
       places the member in fear of imminent physical harm, bodily injury, assault, or
       sexual assault, but does not include defensive measures to protect oneself.

The application paragraph of the charge instructed the jury as follows:

       Now, if you find from the evidence beyond a reasonable doubt that on or about
       the 18th day of September, 2012, in Collin County, Texas, the defendant, ANDRE
       D. BERRY, did then and there intentionally or knowingly violate the terms of a
       protective order issued by Judge Cynthia Wheless of the 417th District Court of
       Collin County, Texas, on June 5, 2012, by intentionally or knowingly committing
       family violence against Camilla Thornton by striking Camilla Thornton in the
       face or head with defendant’s hand, then you will find the defendant guilty of
       violation of a protective order by assault as charged in the indictment.

The jury found appellant guilty, and this appeal followed.

       In his first issue, appellant argues the sentence imposed by the court is illegal because it

imposes felony punishment for a misdemeanor conviction. Specifically, appellant argues the

jury charge fails to allege that the protective order in this case was violated by committing an

assault. “At best the indictment forces an assumption upon the district court to invoke its

jurisdiction: that either all instances of family violence constitute an assault or that all instances

of striking an individual in the face or head constitute an assault.” In his second issue, appellant

argues the application paragraph of the court’s charge also failed to include language requiring
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the jury to find beyond a reasonable doubt that appellant was given notice of the hearing on

whether to issue the protective order; the State concedes this omission was error but argues the

error was harmless. In his third issue, appellant argues the trial court erred in not restricting the

culpable mental states in this case to “their proper result-of-conduct components.” In his fourth

issue, appellant argues he suffered egregious harm as a result of the trial court’s erroneous jury

charge instructions.

          We must first determine whether the charges as submitted to the jury were erroneous and

if so, we must then analyze these complaints utilizing the standards set forth in Almanza v. State.

Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008) (citing Olivas v. State, 202 S.W.3d

137, 143–44 (Tex. Crim. App. 2006), citing Almanza v. State, 686 S.W.2d 157 (Tex. Crim. App.

1985)).     Under Almanza, unobjected-to jury charge error will not result in reversal of a

conviction in the absence of “egregious harm.” Almanza, 686 S.W.2d at 171. It is undisputed

that appellant did not object to the jury charge.

          In examining the record for egregious harm, we consider the entire jury charge, the state

of the evidence, the final arguments of the parties, and any other relevant information revealed

by the record of the trial as a whole. Olivas, 202 S.W.3d at 144. 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. Stuhler v. State, 218 S.W.3d 706, 719 (Tex. Crim. App. 2007);

Sanchez v. State, 209 S.W.3d 117, 121 (Tex. Crim. App. 2006).

          The charge included a definition of the culpable mental states in both nature-of-conduct

and result-of-conduct components. Appellant argues assault is a result-of-conduct offense, and

the inclusion of nature-of-conduct language was error. See Cook v. State, 884 S.W.2d 485, 491

(Tex. Crim. App. 1994). However, appellant was not charged with simple assault. Instead, the

commission of an assault was alleged as the means by which appellant knowingly and

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intentionally violated a protective order. Thus, the State was required to prove that appellant

understood the nature of his conduct: that the conduct violated a protective order.

       Although the court’s charge does define “assault,” the definition does not appear in the

application paragraph concerning violation of a protective order by assault. The application

paragraph on violation of a protective order by assault does not require the jury to find appellant

committed “assault” before finding him “guilty of violation of a protective order by assault as

charged in the indictment.” The charge does not allege appellant had notice of the hearing on

whether or not to issue the protective order. The court’s charge was thus erroneous in these

respects.   Additionally, appellant complains assault is a result-of-conduct offense, and the

inclusion of nature-of-conduct language was error. However, neither the State nor appellant

cites any authority establishing the applicable culpable mental state in a violation of a protective

order by assault case. Assuming without deciding the inclusion of nature-of-conduct language

was also error, we turn to the question of whether appellant has demonstrated he was egregiously

harmed.

       The court’s charge began with the statement that appellant stood charged with “violation

of a protective order by assault.” The application paragraph did not define “assault” but it

required the jury to find appellant guilty of “violation of a protective order by assault” if it found

appellant violated the terms of the protective order by “intentionally or knowingly committing

family violence against [Thornton] by striking [Thornton] in the face or head with [appellant’s]

hand.” Appellant argues this “forces the assumption” that “either all instances of family violence

constitute an assault or that all instances of striking an individual in the face or head constitute an

assault.” We are unable to envision a scenario in which a man, subject to a protective order,

striking a woman in the face or head with his hand would not commit assault. Further, we note

the jury was correctly charged on the lesser-included offense of assault as follows:

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       If you find from the evidence beyond a reasonable doubt that on or about the 18th
       day of September, 2012, in Collin County, Texas, the defendant, ANDRE D.
       BERRY, did then and there intentionally or knowingly cause bodily injury to
       Camilla Thornton by striking Camilla Thornton in the face or head with
       defendant’s hand, then you will find the defendant guilty of the lesser included
       offense of assault.

TEX. PEN. CODE ANN. § 22.01(a)(1) (person commits assault if person intentionally, knowingly,

or recklessly causes bodily injury to another).

       Appellant characterizes the evidence as “contested.” The evidence showed, at the outset,

that appellant knew about the protective order and appealed from it.           Kralemann testified

appellant slapped Thornton in the face and “slammed the door on her leg.” The jury saw

photographs of Thornton’s injured face. The reports made at the time of the injury showed

Thornton said appellant hit her. The record indicates Kralemann may have been taking some

prescription drugs on the night of the incident and may have received testimonial immunity from

the State. However, Kralemann’s testimony was clear and direct concerning the elements of the

offense.

       In closing, the State argued Thornton got a protective order and told the police what

happened, but “when push comes to shove and it’s judgment day, she’s going to come in here

and tell all of you she doesn’t really remember what happened.” The State argued Kralemann

told police on the night of the assault that appellant hit Thornton in the face. The State asked the

jury, if they found that “there was a protective order in place and it was valid and that [appellant]

committed family violence and family violence is defined it includes the assault then he’s

guilty.” The State pointed to the constable’s return showing that appellant was served with the

protective order. As further evidence of notice of the protective order, the State cited State’s

Exhibit 10A, appellant’s notice of appeal of the protective order. Appellant’s notice of appeal

states he was “in county jail” at the time of the hearing on the protective order. As to each of the

lesser included offenses, including assault, the State described each one in detail.
                                                  –8–
       Defense counsel first argued the evidence showed the protective order was not valid.

Thus, she argued, if the jury found the protective order was not valid, the jury could find

appellant innocent because the State would have failed to prove one element of its case. Even if

the protective order was valid, counsel argued appellant did not intentionally and knowingly

violate the order because he did not know Thornton would be at the house where appellant

encountered her. Counsel argued Kralemann was lying and brought his attorney “hoping to cut a

good deal with the [S]tate.” Counsel argued Thornton was also lying and knew how to “use the

system” to “keep control of” [appellant].

       In a brief rebuttal, the State argued to the jury that “[i]f you find he committed assault and

you believe the protective order to be valid, he’s guilty of violating the protective order by

committing family violence.” Having thus reviewed the entire jury charge, the state of the

evidence, and the final arguments of the parties, we conclude appellant was not egregiously

harmed by the errors and omissions in the court’s charge. See Olivas v. State, 202 S.W.3d at

144. In particular, the issue of whether appellant assaulted Thornton and thereby violated the

protective order was clearly before the jury. We overrule appellant’s first, second, third, and

fourth issues.

       We affirm the trial court’s judgment.



Do Not Publish
TEX. R. APP. P. 47.2(b)
                                                      /David L. Bridges/
131186F.U05                                           DAVID L. BRIDGES
                                                      JUSTICE




                                                –9–
                                       S
                              Court of Appeals
                       Fifth District of Texas at Dallas
                                      JUDGMENT

ANDRE D. BERRY, Appellant                          On Appeal from the 380th Judicial District
                                                   Court, Collin County, Texas
No. 05-13-01186-CR        V.                       Trial Court Cause No. 380-82821-2012.
                                                   Opinion delivered by Justice Bridges.
THE STATE OF TEXAS, Appellee                       Justices Lang and Evans participating.

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


Judgment entered June 10, 2015.




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