Affirmed and Memorandum Opinion filed January 29, 2013.




                                    In The

                      Fourteenth Court of Appeals
                            ___________________

                             NO. 14-11-00991-CR
                            ___________________

                         MAURO LIMAS, Appellant

                                      V.

                     THE STATE OF TEXAS, Appellee


                   On Appeal from the 56th District Court
                         Galveston County, Texas
                     Trial Court Cause No. 11CR0083


                        MEMORANDUM OPINION

      A jury convicted appellant, Mauro Limas, of possessing cocaine with the
intent to deliver it. See Tex. Health & Safety Code Ann. § 481.112 (West 2010).
Appellant contends that an extraneous offense instruction and a mental state
instruction in the jury charge were “so egregious and created such harm that [he]
did not have a fair and impartial trial.” Sakil v. State, 287 S.W.3d 23, 26 (Tex.
Crim. App. 2009) (internal quotation marks omitted). We disagree, concluding
that neither instruction caused appellant egregious harm. We therefore affirm
appellant’s conviction.

                                    BACKGROUND

      On January 11, 2011, appellant was driving in Texas City when, without
signaling, he made a u-turn that crossed three traffic lanes. In the process, he nearly
collided with an unmarked police vehicle. The officers in the police vehicle then
initiated a traffic stop and learned that appellant’s license to drive was suspended and
that he had no proof of insurance. An officer asked appellant to exit the car, intending
to arrest him for driving with a suspended license. See Tex. Transp. Code Ann. §
521.457(a)(2) (West 2007). The officer then noticed two large bulges in appellant’s
jacket. A search revealed that the bulges were two 1.02-ounce bags of cocaine with a
street value of approximately $2,700 each. The only issue at trial was whether
appellant intended to deliver this cocaine. A jury concluded that he did and convicted
him of possession of cocaine with the intent to deliver. See Tex. Health & Safety
Code Ann. § 481.112.

                                      ANALYSIS

      Appellant now appeals, arguing that two alleged errors in the jury charge
require reversal of his conviction: (1) the trial court improperly instructed the jury
to consider appellant’s uncharged driving offenses in determining whether he
intended to distribute the cocaine; and (2) the trial court impermissibly expanded
the scope of appellant’s indictment by instructing the jury that it could convict if


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appellant possessed the cocaine knowingly or intentionally when the indictment
only alleged that appellant knowingly possessed the cocaine.

I.    Standard of Review

      We review a claim of jury-charge error in a criminal case using a two-step
procedure. The first step is to determine whether there is error in the charge.
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). If there was error
and appellant objected to the error at trial, reversal is required if the error “is
calculated to injure the rights of the defendant,” meaning that there is “some
harm.” Id. (quotation omitted). If the error was not objected to, it must be
“fundamental” and requires reversal only if the error was so egregious and created
such harm that the defendant “has not had a fair and impartial trial.” Id. (internal
quotation marks omitted). Here, appellant concedes that he failed to object to
either instruction, so we apply a fundamental error standard.

II.   The trial court’s extraneous offense instruction did not cause egregious
      harm.
      The trial court instructed the jury as follows:
      [I]f there is any testimony before you in this case regarding the
      Defendant’s having committed offenses other than the offense alleged
      against him in the indictment in this case . . . then you may only
      consider the same in determining the intent of the Defendant, if any,
      in connection with the offense, if any, alleged against him in the
      indictment in this case and for no other purpose.
      Appellant does not argue that the instruction incorrectly stated the law, but
contends instead that the only extraneous offenses before the jury were reckless
driving, driving without a valid license, failing to signal before turning, and
making an illegal u-turn. Because these offenses are irrelevant to whether he
intended to deliver cocaine, appellant argues that the trial court erred by instructing

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the jury that it could consider the offenses in determining his intent. The State
does not argue that the instruction was correct, but contends that any error in the
instruction was not fundamental.

       Because neither party contends that the instruction was proper, we will
assume that it was error. See Abdnor v. State, 871 S.W.2d 726, 738 (Tex. Crim.
App. 1994) (“[A] limiting instruction is not necessary where the extraneous
offenses are so dissimilar to the charged offense that the jury cannot mistakenly
draw a connection between the charged offense, and the extraneous offenses.”). In
the absence of an objection, we limit our analysis to whether the harm resulting
from the error was such that appellant did not have a fair and impartial trial.
Barrios, 283 S.W.3d at 350.         We conclude that any harm resulting from the
instruction did not rise to this level.

       Appellant’s assertion that driving offenses are irrelevant to an intent to
deliver cocaine demonstrates the very reason that the instruction was harmless.
The instruction neither suggested nor required that the jury draw any particular
inference about appellant’s intent based upon the other offenses he committed.
Rather, it permitted the jury to assign these offenses their appropriate relevance “in
determining the intent of the Defendant . . . in connection with the offense . . .
alleged against him in the indictment.” If the jury followed this instruction, the
nature of appellant’s driving offenses compelled the conclusion now urged by both
parties: the offenses were entirely irrelevant to appellant’s intent regarding the
cocaine. See Thrift v. State, 176 S.W.3d 221, 224 (Tex. Crim. App. 2005) (“[W]e
generally presume the jury follows the trial court’s instructions . . . .”). In sum,
while it may have been error, it cannot have been egregiously harmful for the jury
to consider the defendant’s extraneous offenses and reach the unavoidable

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conclusion that they were logically irrelevant to his intent. We overrule appellant’s
first issue.

III.   The trial court’s addition of an uncharged mental state of intentional
       possession did not cause egregious harm.
       In his second issue, Appellant contends the trial court erred by instructing
the jury that it could convict him if it found that he “intentionally” possessed
cocaine with the intent to deliver it because this instruction “improperly expanded
the scope of the charge against [him]” in the indictment. The indictment charged
that appellant “knowingly possess[ed], with intent to deliver, a controlled
substance, namely cocaine.” The court instructed the jury to find appellant guilty
if, among other things, it found beyond a reasonable doubt that he “intentionally,
or knowingly possess[ed], with intent to deliver, a controlled substance, to-wit:
cocaine.” (Emphasis added).

       To support his argument, appellant cites cases in which the jury charge
erroneously permitted conviction upon a finding that the defendant possessed a less
culpable mental state than that alleged in the indictment. In those cases, “the
inclusion in the jury instructions of a lower culpable mental state than that charged
in the indictment can lead to the possibility that the defendant was convicted of an
offense that is allowed under the statute but was not alleged in the indictment.”
Reed v. State, 117 S.W.3d 260, 264 (Tex. Crim. App. 2003). This defect deprives
the defendant of the notice necessary for an “adequate opportunity to prepare and
present a defense.” See id. at 267 (Johnson, J., concurring).

       In this case, however, the charge included an instruction on a more culpable
mental state as well as on the mental state alleged in the indictment. The Penal
Code itself provided appellant with notice that the State could seek to prove the

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less culpable mental state through proof of the more culpable one. See Tex. Penal
Code Ann. § 6.02(e) (West 2011) (“[p]roof of a higher degree of culpability than
that charged constitutes proof of the culpability charged”). Because “intentionally”
is a higher degree of culpability than “knowingly,” the State could prove that
appellant possessed the cocaine knowingly, as alleged in the indictment, by
proving that he possessed it intentionally. See id.

      We fail to see how adding a jury instruction on a more culpable mental state
could have egregiously harmed appellant.        The intentional mental state about
which appellant complains is more difficult for the State to prove, and the jury had
to find at least the knowing mental state alleged in the indictment before it could
convict appellant. Moreover, any error in instructing the jury on the mental state
required to prove possession could not have harmed appellant because he did not
contest the element of possession at trial. Instead, the parties’ dispute focused on
whether appellant intended to distribute the cocaine. In fact, appellant’s counsel
urged the jury to convict appellant of the lesser included offense of possession,
which the charge similarly defined with the mental states of “intentionally or
knowingly.”

      Appellant argues that adding the mental state of intentional possession was
nevertheless harmful because it removed a “logical flaw” in the indictment.
According to Appellant, “[i]f a person . . . only knowingly possessed [an] item,
then it would be logically impossible for the same person to have an intent to
deliver that same item to a third person.” By adding intentional possession to the
charge, Appellant contends, the court removed this flaw and made it more likely
that the jury would find he had an intent to deliver.



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       We disagree. Regardless of whether intentional possession was included in
the charge, section 6.02(e) of the Penal Code allowed the State to use evidence of
intentional possession to prove the knowing possession alleged in the indictment.
Thus, the indictment did not constrain the State to prove its case using the
questionable logic appellant suggests.

       For these reasons, we hold that Appellant failed to show that it was
fundamental error for the court to add a more culpable mental state to the jury
instructions concerning an undisputed element of the offense. We overrule his
second issue.

                                      CONCLUSION

       Having overruled both of appellant’s issues, we affirm the judgment of the
trial court.




                                /s/           J. Brett Busby
                                              Justice


Panel consists of Chief Justice Hedges and Justices Brown and Busby.

Do Not Publish—Tex. R. App. P. 47.2(b).




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