                            NUMBER 13-12-00274-CR

                           COURT OF APPEALS

                 THIRTEENTH DISTRICT OF TEXAS

                    CORPUS CHRISTI – EDINBURG

STEVEN PAUL PERKINSON,                                                      Appellant,

                                          v.

THE STATE OF TEXAS,                                                           Appellee.


                   On appeal from the 435th District Court
                       of Montgomery County, Texas.


                        MEMORANDUM OPINION
      Before Chief Justice Valdez and Justices Garza and Perkes
               Memorandum Opinion by Justice Garza

      Appellant, Steven Paul Perkinson, was convicted of bail jumping and failure to

appear, a third-degree felony. See TEX. PENAL CODE ANN. § 38.10(a), (f) (West 2011).

By two issues, Perkinson contends that:        (1) the trial court erred in overruling his

objection to the definition of “reasonable excuse” contained in the jury charge; and (2)
the trial court erred in instructing the jury that it could consider extraneous offenses. We

affirm.

                                       I. BACKGROUND

          Perkinson was released from the Montgomery County Jail after being arrested

and detained for felony possession of a controlled substance.            Upon release, he

received an order notifying him of his first court date on June 3, 2011. Perkinson signed

the order, acknowledging its receipt, but he not appear in court on that date. The trial

court ordered his bond forfeited and issued a warrant for his arrest.

          On July 7, 2011, Perkinson was arrested on the bond forfeiture warrant. At trial,

he acknowledged that he signed and placed his thumbprint on the notice he received

when he was released from jail, but that he failed to appear in court on June 3, 2011 as

directed by that notice. He explained that he did “[n]ot intentionally” fail to appear, but

that “I just had my days mixed up . . . . I was moving and everything else.” He couldn’t

recall what he was actually doing on June 3, 2011. He stated that, when he realized he

had missed his court date, he contacted his bail bondsman and understood that he was

to appear in court on July 11, 2011, to have his bond reinstated. Instead, he was

arrested. Perkinson testified that, had he known that he was due in court on June 3, he

“wouldn’t have missed it for the world.”

          Section five of the jury charge set out the statutory defense of reasonable

excuse. See id. § 38.10(c). The section stated, in relevant part:

          It is a defense to the offense of Bail Jumping that the actor had a
          reasonable excuse for his failure to appear in accordance with the terms
          of his release. An excuse is a reason that justifies an act or omission or
          that relieves a person of a duty. A reasonable excuse must encompass
          the entire time the defendant was absent from the court, i.e., from the time



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       his name was called in the courtroom to the time he was ultimately
       apprehended or appeared in court.

Section six of the jury charge set out the law with regard to evidence of extraneous bad

acts. See TEX. R. EVID. 404(b). Defense counsel objected to the inclusion of both

sections five and six, but the trial court overruled the objections.

       The jury found Perkinson guilty of the offense of bail jumping and failure to

appear.     It found as true the State’s two enhancement paragraphs, alleging that

Perkinson had been twice previously convicted of felony offenses, and punishment was

assessed at thirty-five years’ imprisonment. This appeal followed.1

                                           II. DISCUSSION

       On appeal, Perkinson contends that there was error in the jury charge which

caused him to suffer harm. By his first issue, he argues that non-statutory language

expounding upon the “reasonable excuse” defense impermissibly increased his burden

to demonstrate that defense. By his second issue, he argues that the trial court erred in

instructing the jury that it could consider the drug offense underlying the bail jumping

and failure to appear charge.

A.     Standard of Review and Applicable Law

       Our first duty in analyzing a jury charge issue is to decide whether error exists.

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005). Then, if we find error, we

determine whether the error caused the appellant to suffer harm.                     Id.   When the

defendant has properly objected to the charge error, as here, reversal is required if we

find “some harm” to the defendant’s rights. Almanza v. State, 686 S.W.2d 157, 171


       1
          This appeal was transferred from the Ninth Court of Appeals to this Court pursuant to a docket
equalization order issued by the Texas Supreme Court. See TEX. GOV’T CODE ANN. § 73.001 (West
2005).

                                                   3
(Tex. Crim. App. 1994); see Dickey v. State, 22 S.W.3d 490, 492 (Tex. Crim. App.

1999) (en banc). It is Perkinson’s burden to prove that he suffered some actual, rather

than merely theoretical, harm from the error.          See Dickey, 22 S.W.3d at 492.

Nevertheless, the presence of any harm, regardless of degree, is sufficient to require a

reversal of the conviction. Id.

       The trial court is required to give the jury a written charge “setting forth the law

applicable to the case; not expressing any opinion as to the weight of the evidence, not

summing up the testimony, discussing the facts or using any argument in his charge

calculated to arouse the sympathy or excite the passions of the jury.” TEX. CODE CRIM.

PROC. ANN. art. 36.14 (West 2007).

B.     Reasonable Excuse Instruction

       Texas courts have generally held that, if a jury charge instruction “is not derived

from the [penal] code, it is not ‘applicable law’” under article 36.14. Walters v. State,

247 S.W.3d 204, 214 (Tex. Crim. App. 2007). As the Texas Court of Criminal Appeals

stated in Walters:

       Before the 1974 Penal Code was adopted, many statutory defenses
       included specific descriptions of the type of evidence that established that
       defense. In those cases, a trial judge appropriately instructed the jury on
       the wording of the entire statute. The instruction was not considered a
       comment on the weight of evidence (even if it was) because the statute
       expressly mandated what evidence should be considered for what
       purpose. When these descriptions were carried forward into the current
       code, instructions regarding them are still appropriate. But when these
       common-law doctrines or descriptions have not been carried forward into
       the Penal Code, instructions on them would constitute a comment on the
       weight of the evidence that the Legislature has not expressly authorized.
       When the legislature has not enacted specific statutes, courts may
       conclude that it intended this silence in the law and in the jury instructions.

Id. at 212 (footnote omitted). Accordingly,



                                              4
          neither the defendant nor the State is entitled to a special jury instruction
          relating to a statutory offense or defense if that instruction (1) is not
          grounded in the Penal Code, (2) is covered by the general charge to the
          jury, and (3) focuses the jury’s attention on a specific type of evidence that
          may support an element of an offense or a defense. In such a case, the
          non-statutory instruction would constitute a prohibited comment on the
          weight of the evidence.

Id.

          The penal code provision addressing the reasonable-excuse defense to bail

jumping states, in its entirety: “It is a defense to prosecution under this section that the

actor had a reasonable excuse for his failure to appear in accordance with the terms of

his release.” TEX. PENAL CODE ANN. § 38.10(c). Here, the jury was instructed that a

“reasonable excuse” under section 38.10(c) must be an excuse that “encompass[es] the

entire time the defendant was absent from the court, i.e., from the time his name was

called in the courtroom to the time he was ultimately apprehended or appeared in

court.”

          Perkinson argues that this instruction incorporates a non-statutory definition of

“reasonable excuse” and is therefore erroneous. He further argues that he suffered

harm as a result of the error because his defensive strategy was based on establishing

that he had a reasonable excuse for failing to appear in court on June 3, 2011.

          The instruction at issue was apparently taken from the Fourteenth Court of

Appeals’ 2004 opinion in Kombudo v. State, 148 S.W.3d 547, 550 (Tex. App.—Houston

[14th Dist.] 2004), vacated on other grounds, 171 S.W.3d 888 (Tex. Crim. App. 2005).

In Kombudo, the court of appeals stated:

          We do not construe [subsection 38.10(c)] to mean that appellant need
          only have a “reasonable excuse” at the precise moment his name was
          called in the trial court. Rather, we find that a “reasonable excuse” must
          encompass the entire time appellant was absent from the court, i.e., from

                                                5
        the time his name was called in the courtroom to the time he was
        ultimately apprehended or appeared in court.

148 S.W.3d at 550.2

        Applying the criteria set forth in Walters, 247 S.W.3d at 212, we conclude that the

inclusion of this instruction was not error. The Walters Court stated that a special

instruction should not be included in the jury charge if it “(1) is not grounded in the Penal

Code, (2) is covered by the general charge to the jury, and (3) focuses the jury’s

attention on a specific type of evidence that may support an element of an offense or a

defense.” Id. The instruction at issue here was not grounded in the Texas Penal Code.

However, we find that the instruction is not covered by the general charge to the jury

because the general charge, reflecting penal code subsection 38.10(c), is silent

regarding the precise time period during which a defendant must have a “reasonable

excuse” in order for the defense to be applicable. The trial court’s instruction in this

case simply incorporates existing case law, as stated in Kombudo, into an instruction

regarding the “reasonable excuse” defense.3 It does not focus the jury’s attention on


        2
           Neither party was able to locate, nor was this Court able to locate, any other Texas case
interpreting the “reasonable excuse” defense in this manner.
        3
           Perkinson does not argue that the Kombudo court’s interpretation of penal code subsection
38.10(c) is wrong; he merely states that the interpretation should not have been included into the jury
charge because it is of non-statutory origin. We do not express an opinion on whether the Kombudo
court’s construction of the statute is correct because that issue is not before us. See TEX. R. APP. P. 47.1.
But, we note that Walters does not forbid all non-statutory instructions from being included in the charge;
instead, it only forbids those non-statutory instructions which constitute a comment on the weight of the
evidence. See Walters v. State, 247 S.W.3d 204, 212–14 (Tex. Crim. App. 2007). The instruction at
issue here does not fall within that category.

        We also note that any error in submitting the complained-of jury instruction would have been
harmless. See TEX. R. APP. P. 44.2(b) (regarding reversible non-constitutional error in criminal cases).
Even if we were to assume that the bail bondsman’s instructions may have given Perkinson a
“reasonable excuse” for failing to appear between the time he realized he missed his court date and the
time he was arrested, Perkinson presented no evidence establishing a “reasonable excuse” for his failure
to appear in court on June 3, 2011. In particular, Perkinson’s testimony that he “just had [his] days mixed
up” and “was moving and everything else,” but that he couldn’t recall what he was actually doing on June
3, would have been legally insufficient to support a jury finding of “reasonable excuse,” regardless of

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any specific type of evidence, and therefore does not constitute a comment on the

weight of the evidence. See TEX. CODE CRIM. PROC. ANN. art. 36.14; Walters, 247

S.W.3d at 212.

        Perkinson’s first issue is overruled.

C.      Extraneous Offense Instruction

        Section six of the jury charge stated, in its entirety, as follows:

        There is evidence before you in this case alleging the Defendant
        committed an offense or offenses other than the offense alleged against
        him in the indictment in this case. You are instructed that you cannot
        consider such evidence for any purpose unless you first find and believe
        beyond a reasonable doubt that the Defendant did commit such other
        alleged offense or offenses.

        You are instructed that evidence of crimes, wrongs, or acts other than
        what is alleged in the indictment is not admissible to prove the character of
        the Defendant in order to show action in conformity with that character, as
        proof he is guilty of the offense charged in the indictment.

        It may, however, be admissible for other purposes, such as proof of
        motive, opportunity, intent, preparation, plan, knowledge, identity, or
        absence of mistake or accident, and even then you only consider the
        same in determining the motive, opportunity, intent, preparation, plan,
        knowledge, identity, or absence of mistake or accident of the defendant, if
        any, in connection with the offense, alleged against him in the indictment,
        and for no other purpose.

The final two paragraphs of this section precisely track the rule of evidence regarding

extraneous offenses. See TEX. R. EVID. 404(b).

        Perkinson argues that “[i]t was error to include the reference to extraneous

offenses in the jury charge” because it “allowed the State to use extraneous offenses[4]



whether the complained-of jury instruction was included in the charge. See Matlock v. State, 392 S.W.3d
662, 667 (Tex. Crim. App. 2013) (setting forth standard of review for evidentiary sufficiency for affirmative
defense).
        4
         In particular, evidence was adduced indicating that Perkinson had previously been charged with
possession of a controlled substance.

                                                     7
to prove Perkinson’s character or conformity therewith.” We disagree. As noted, the

rule precisely tracks the applicable rule of evidence. See id. Ordinarily, a jury charge

instruction that essentially tracks statutory or rule language will not be deemed error.

Martinez v. State, 924 S.W.2d 693, 699 (Tex. Crim. App. 1996); Blackwell v. State, 193

S.W.3d 1, 16 (Tex. App.—Houston [1st Dist.] 2006, pet. ref’d).

       The Texas Court of Criminal Appeals has found such instructions erroneous only

when they instruct the jury on an improper Rule 404(b) purpose. See Daggett v. State,

187 S.W.3d 444, 446 (Tex. Crim. App. 2005) (finding error in instruction that jury

consider extraneous offense evidence only for limited purposed of “determining the

common plan or scheme” of defendant because no evidence at trial showed that

extraneous offense was plan or scheme of defendant and extraneous offense was only

admissible to rebut “appellant's blanket statement of good conduct with minors,” an

issue not included in the jury charge); Owens v. State, 827 S.W.2d 911, 916–17 (Tex.

Crim. App. 1992) (finding error in instruction that jury consider extraneous evidence only

for limited purpose of “determining the system of the Defendant” because no evidence

at trial showed that extraneous offense was “the system or unusual handiwork of

defendant”). In both Daggett and Owens, the only limitation on the jury’s consideration

of the extraneous offense related to an issue that was not raised by the evidence at trial.

See Daggett, 187 S.W.3d at 446; Owens, 827 S.W.2d at 913. The concern in Owens

and Daggett, that the jury charge limited the extraneous offense evidence to an

impermissible consideration only, is not present here.         The jury charge properly

instructed the jury in how it may consider the extraneous offense evidence, and it limited




                                            8
the jury’s use of the evidence to only those purposes explicitly permitted by Rule

404(b).5

        We find no error in section six of the jury charge.6 Perkinson’s second issue is

overruled.

                                               V. CONCLUSION

        The trial court’s judgment is affirmed.



                                                         ________________________
                                                         DORI CONTRERAS GARZA,
                                                         Justice

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

Delivered and filed the
8th day of August, 2013.




        5
           Perkinson further argues that the instruction was erroneous because “[t]he fact that Perkinson
had been charged with possession of a controlled substance would not be probative of motive,
opportunity, intent, preparation, plan, knowledge, identity, or absence of mistake or accident.” However,
he does not explicitly challenge the admission of the evidence on appeal; rather, his argument is confined
to the propriety of the limiting instruction contained in the jury charge. In any event, to the extent
Perkinson does raise an issue regarding admission of the evidence, we note that defense counsel did not
object to the evidence at trial. Accordingly, any error in the admission of that evidence—as opposed to
error in charging the jury—has not been preserved for our review. See TEX. R. APP. P. 33.1.
        6
         Even if we assumed that the inclusion of section six was erroneous, Perkinson cannot show that
he was harmed by any such error. See TEX. R. APP. P. 44.1, 44.2. If the trial court had sustained
defense counsel’s objection and excluded the instruction at issue, the jury would have been free to
consider evidence of Perkinson’s extraneous offenses for any purpose, including character conformity.

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