                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-15-00379-CR

ROBERT ALLEN WORKMAN, JR.,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                         From the 272nd District Court
                              Brazos County, Texas
                        Trial Court No. 14-04808-CRF-272


                          MEMORANDUM OPINION


      Robert Workman, Jr. appeals from a conviction of violation of a protective order

by assault, and because two prior felony convictions were found to be true, his sentence

was assessed at thirty-eight years in prison. TEX. PENAL CODE ANN. § 25.07(g)(2) (West

2011). Workman complains that the trial court erred by (1) submitting the lesser-included

offense of violation of a protective order by assault because it is not a lesser-included

offense of violation of a protective order two or more times, and (2) failing to include
essential elements of the offense in the application portion of the jury charge. Because

we find no reversible error, we affirm the judgment of the trial court.

                                LESSER-INCLUDED OFFENSE

       In his first issue, Workman complains that the trial court erred by including the

lesser-included offense of violation of a protective order by assault in the jury charge

because it is not a lesser-included offense of the offense for which he was indicted.

Workman was indicted for the offense of violation of a protective order two or more times

within a twelve month period.

       To determine whether an offense is a lesser-included offense of another offense,

we use the "cognate-pleading" approach, which we begin by "comparing the elements of

the greater offense, as the State pled it in the indictment, with the elements in the statute

that defines the lesser offense." Hall v. State, 225 S.W.3d 524, 525 (Tex. Crim. App. 2007).

The first step in determining whether an offense is a lesser-included offense of the alleged

offense is a question of law. It must "be, capable of being performed before trial by

comparing the elements of the offense as they are alleged in the indictment or information

with the elements of the potential lesser-included offense." Hall, 225 S.W.3d at 535-36.

"[W]hen the statute defines alternative methods of manner and means of committing an

element and the indictment alleges only one of those methods, 'the law' for purposes of

the hypothetically correct charge[] is the single method alleged in the indictment."

Clinton v. State, 354 S.W.3d 795, 799 (Tex. Crim. App. 2011) (citing Gollihar v. State, 46


Workman v. State                                                                       Page 2
S.W.3d 243, 254 (Tex. Crim. App. 2001)). The second step in this analysis asks whether

there is evidence that supports giving the instruction to the jury. Id. at 536. That is, there

must be evidence in the record that would permit a jury to rationally find that the

defendant is guilty only of the lesser offense. Rousseau v. State, 855 S.W.2d 666, 672 (Tex.

Crim. App. 1993). Appellate courts should review all the evidence presented in trial in

making this determination. Bignall v. State, 887 S.W.2d 21, 23 (Tex. Crim. App. 1994).

       The elements of Section 25.07 that were authorized by the indictment are as

follows:

       (a) A person commits an offense if, in violation of … an order issued under
           … Chapter 83, Family Code, if the temporary ex parte order has been
           served on the person, … the person knowingly or intentionally:
              (1) commits family violence …;
                  …
              (3) goes to or near any of the following places as specifically
              described in the order or condition of bond:
              (A) the residence … of a protected individual or a member of the
              family or household…

TEX. PENAL CODE ANN. § 25.07.

       Section 25.072 of the Penal Code provides that "[a] person commits an offense if,

during a period that is 12 months or less in duration, the person two or more times

engaged in conduct that constitutes an offense under section 25.07," which makes the

offense a third degree felony. TEX. PENAL CODE ANN. § 25.072(a), (e). However, the jury

did not find that Workman was guilty of the indicted offense. At the charge conference,

the State requested that the lesser included offense of violation of a protective order by


Workman v. State                                                                        Page 3
assault be included in the charge, and the trial court approved the inclusion over

Workman's objection. Workman was found guilty of the lesser included offense pursuant

to Section 25.07(g) which provides that the offense is a third-degree felony if the

defendant violated the order by committing an assault. TEX. PENAL CODE ANN. § 25.07(g).

Workman complains that the trial court erred by including the lesser included offense in

the jury charge.

       The application paragraph in the jury charge for the primary offense stated:

       Now, if you find beyond a reasonable doubt that on or about March 24,
       2014, in Brazos County, Texas, the defendant, ROBERT WORKMAN, JR.,
       did then and there during a continuous period that was twelve months or
       less in duration, namely, from on or about the 24th day of March, 2014
       through the 27th day of March, 2014, engage in conduct two or more times
       that constituted an offense under Section 25.07 of the Texas Penal Code,
       namely, on or about the 24th day of March, 2014, in Brazos County, Texas,
       the defendant did then and there intentionally or knowingly violate the
       terms of an order issued by Jim Locke of the 85th District Court of Brazos
       County, Texas on the 13th day of March, 2014 under authority of Chapter 83
       of the Texas Family Code, by intentionally or knowingly committing family
       violence against Markeisha Shields, to wit: striking or dragging or pushing
       her with his hand

       AND

       You further find that on or about the 27th day of March, 2014, in Brazos
       County, Texas the defendant did then and there intentionally or knowingly
       violate the terms of an order issued by J.D. Langley of the 85th District Court
       of Brazos County, Texas on the 26th day of March, 2014 under authority of
       Chapter 85 of the Texas Family Code, by intentionally or knowingly going
       within 200 feet of the residence of Markeisha Shields, described in said
       protective order, then you will find the defendant guilty of Violating a
       Protective Order or Magistrate's Order Two or More Times Within a Twelve
       Month Period as charged in the indictment.


Workman v. State                                                                         Page 4
       The lesser included offense included in the jury charge stated:

       Now, bearing in mind the foregoing instructions, if you solely find beyond
       a reasonable doubt that on or about the 24th day of March, 2014, in Brazos
       County, Texas, the defendant did then and there intentionally or knowingly
       violate the terms of an order issued by Jim Locke of the 85 th District Court
       of Brazos County, Texas on the 13th day of March, 2014 under authority of
       Chapter 83 of the Texas Family Code, by intentionally or knowingly
       committing family violence against Markeisha Shields, to wit: striking or
       dragging or pushing her with his hand, then you will find the defendant
       guilty of the single offense of Violation of a Protective Order by Assault.

       Workman complains that the offense of violating the protective order by

committing an assault is not a lesser-included offense of violating a protective order two

or more times because the offense of violation of a protective order two or more times

does not require a finding that Workman committed an assault as defined in the Penal

Code, but rather committed family violence. The only difference between the language

in the first paragraph of the greater offense and the lesser-included offense is the addition

of the words "then you will find the defendant guilty of the single offense of Violation of

a Protective Order by Assault." The allegations presented by the indictment are the same

from the greater offense to the lesser offense included in the jury charge.

       Family violence, by its definition, can be committed by an act that is intended to

result in an assault. The allegations in the indictment were limited to committing family

violence by striking or dragging or pushing the victim with his hand. The Dallas Court

of Appeals addressed the issue of whether the alleged manner and means of committing

family violence of striking the victim in the face or head with the defendant's hand was


Workman v. State                                                                       Page 5
sufficient to allege the felony offense of violation of a protective order by committing

assault. See Berry v. State, No. 05-13-01186-CR, 2015 Tex. App. LEXIS 5853 at *12 (Tex.

App.—Dallas June 10, 2015, pet. ref'd). The Dallas court held that it could not envision a

scenario where a man striking a woman in the face or head with his hand would not

commit an assault. See id. Those facts are fairly analogous to the facts alleged in this

proceeding regarding the manner and means of the commission of the violation of the

protective order, which was to commit family violence by striking, dragging, or pushing

the victim with Workman's hand. Like the Dallas court, we agree that the allegations, if

true, would constitute an assault.1

       We find that the offense of which Workman was convicted, as alleged by the

indictment and included in the jury charge, was a lesser-included offense of the primary

offense of Violation of a Protective Order Two or More Times because of the single

manner and means of committing the violation that was included in the indictment. We

overrule issue one.

                                       JURY CHARGE ERROR

       In his second issue, Workman complains that the application paragraph for the

lesser-included offense of violation of a protective order by assault in the guilt-innocence

phase of the jury charge was erroneous because it did not apply essential elements of the



1Workman does not challenge the sufficiency of the evidence regarding whether or not he committed the
offense of Violation of a Protective Order by committing an assault, where he could have challenged the
sufficiency of the evidence regarding whether or not an assault in fact occurred.
Workman v. State                                                                                Page 6
offense. Specifically, Workman complains that the paragraph erroneously omitted the

terms "caused bodily injury," "the act was intended to result in physical harm, bodily

injury, or assault," and "if the temporary ex parte order has been served on the person."

Workman concedes that he did not specifically object to the absence of these elements in

the charge presented to the jury.

       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 Workman did not object to the language contained

in the application paragraph in 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).


Workman v. State                                                                       Page 7
       The State concedes that the jury charge was erroneous for failing to include the

allegation that the protective order had been served on Workman. The State does not

concede that the jury charge was erroneous for failing to require findings that Workman

"caused bodily injury" or that "the act was intended to result in physical harm, bodily

injury, or assault."

       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 that Workman committed "assault" before finding him "guilty of violation of

a protective order by assault as charged in the indictment." The charge does not allege

that Workman had been served with a copy of the protective order. We find that the

court's charge was erroneous in those respects. Additionally, Workman complains that

assault is a result-of-conduct offense and the violation of a protective order is a nature-

of-conduct language and the inclusion of both without proper connections exacerbated

the harm from the other errors. We must next determine whether Workman was

egregiously harmed by the erroneous jury charge.

       The application paragraph of the jury charge did not define "assault" but it

required the jury to determine whether Workman was guilty of "Violation of a Protective

Order by Assault" if it did not find that Workman had violated the protective order two

or more times in the first application paragraph but had violated the terms of the


Workman v. State                                                                     Page 8
protective order by "intentionally or knowingly committing family violence against

Markeisha Shields to wit: striking or dragging or pushing her with his hand." The

charge's instruction regarding what constitutes a third degree felony for violating the

protective order included violating the protective order by committing assault as well as

by violating the protective order two or more times. There were also instructions as to

the statutory definitions of "family violence," "assault," and "bodily injury."

       The evidence included testimony from an eyewitness to the alleged assault who

was a child who was 8 years old at the time of the offense, photographs of Shields's

injuries, the 911 tape where Shields had called the police right after the alleged assault

occurred, and testimony of the law enforcement officer who was at the scene and spoke

with Shields on March 24. Shields did not appear at trial even though she had been

subpoenaed by the State. There was also testimony by a deputy regarding personal

service of the temporary protective order on Workman. There was no dispute that

Workman had been served with the temporary protective order or that he was present at

the scene on the night of the alleged assault.

       In Workman's final argument, he attempted to cast suspicion on the accuracy of

the child's eyewitness account of the offense as well as Shields's failure to appear to

testify. Workman argued that there was no evidence to establish that there was any

bodily injury proved by the State. Workman did not contend that he was not served with

the temporary protective order, but attempted to cast suspicion on whether or not he


Workman v. State                                                                    Page 9
understood what the protective order required. The State argued that the testimony of

the eyewitness was accurate and believable and that Shields likely did not appear because

she was fearful of Workman. The State also pointed to the photographs and other

evidence to support the inference that Shields had suffered bodily injury from

Workman's assault.

       The jury was able to see the results of what occurred between Workman and

Shields in the photographs and heard the emotional tenor of Shields's voice in the 911

call. There was no dispute that Workman had been served with the protective order,

which is all that is required pursuant to the statute. Further, the jury was required to find

that Workman intentionally or knowingly violated the protective order, which would

require that he had knowledge that the order existed, which was also not challenged by

Workman. Viewing the jury charge, the state of the evidence, the arguments of the

parties, and the record as a whole, we do not find that Workman was egregiously harmed

by the errors in the jury charge. We overrule issue two.

                                       CONCLUSION

       Having found no reversible error, we affirm the judgment of the trial court.




                                          TOM GRAY
                                          Chief Justice

Before Chief Justice Gray,
       Justice Davis, and
       Justice Scoggins
Workman v. State                                                                      Page 10
Affirmed
Opinion delivered and filed February 1, 2017
Do not publish
[CRPM]




Workman v. State                               Page 11
