
    James Tyrone RIGGS, Appellant v. The STATE of Texas, Appellee
    No. 10-14-00229-CR
    Court of Appeals of Texas, Waco.
    Opinion delivered and filed December 10, 2015
    Discretionary Review Refuse March 9, 2016
    
      E. Alan Bennett, Sheéhy Lovelace & Mayfield, PC, Waco, TX, for Appellant.
    Mark F. Pratt, District Attorney, Hills-boro, TX, for Appellee.
    Before Chief Justice Gray, Justice - Dávis, and Justice Scoggins
    
      
      . Harris’s and Riggs’s testimony indicate that Riggs had been charged with aggravated assault with a deadly weapon and that the case had not yet gone to trial.
    
   OPINION

TOM GRAY, Chief Justice

James Tyrone Riggs was convicted of the felony offense of evading arrest or detention with a vehicle. See Tex. Penal Code Ann. § 38.04(a), (b)(2)(A) (West 2011). He pled true to two prior felony convictions and was sentenced to 65 years in prison. Because Riggs was not harmed by the errors in the court’s charge to the jury at guilt/innocence .and at punishment, the trial court’s judgment is affirmed.

Background

Riggs was driving his convertible Corvette with the top down during the late evening of October 12, 2013. Officer David Haakinson, of the Hillsboro Police Department, passed Riggs at an intersection, recognized Riggs, and asked dispatch to check Riggs for outstanding warrants. When dispatch advised Haakinson that Riggs had an outstanding Class C warrant and that Riggs’s driver’s license was suspended, Haakinson decided to stop Riggs. After he caught up to Riggs, Haakinson turned on his overhead lights. Riggs did not stop. He continued down the street and accelerated onto another street. Haa-kinson then activated his siren. Riggs turned onto another street and again accelerated. Haakinson believed Riggs was travelling well over the posted speed limit. Riggs turned on yet another street, entered his driveway, and pulled into his backyard where he was arrested.

Jury Charge Error

In five issues, Riggs complains ■ about jury charge error. Because all five issues relate to' alleged charge error, we will discuss the law applicable to our review of such complaints first to the extent the law applies to more than one issue. To the extent the applicable law applies to only one issue, we will discuss that specific law in connection with our review of that issue.

Standard of Review

A claim of jury-charge'error is'reviewed using the procedure set out in Almanza. Barrios v. State, 283 S.W.3d 348, 350 (Tex.Crim.App.2009); Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App.1985); Haley v. State, 2014 WL 3556629, at *1, 2014 Tex.App. LEXIS 7207, *2 (Tex.App.-Waco July 3, 2014, pet. ref'd) (not designated for publication). If error is found, we then analyze that error for harm. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App.2003).

If. an- error was properly preserved by objection, reversal will be necessary if there is some harm to the accused from the. error. Almanza, 686 S.W.2d at 171. Conversely, if error was not preserved at.trial by a proper objection, a reversal will be granted only if the charge error causes egregious harm, meaning the appellant did not receive,a fair and impartial trial. Id. 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); However, the Court of Criminal Appeals has suggested that it is unlikely that charge error in the abstract portion of the charge which is not present in the application paragraph wall be egregiously harmful. See Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App.1999).

For both preserved and unpre-served charging error, the actual degree of harm must be assayed in light of the entire jury charge, the state of the evidence, including contested issues and weight of probative evidence, the argument of counsel and any other relevant information revealed by the record óf the trial as a whole. Patrick v. State, 906 S.W.2d 481, 492 (Tex.Crim.App.1995); Arline v. State, 721 S.W.2d 348, 351 (Tex.Crim.App.1986). To obtain a reversal for jury-charge error, an appellant must have suffered actual harm, not merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775. (Tex. Crim.App.2012); Arline, 721 S.W.2d at 352.

Conduct Elements

Riggs complains in his fourth issue that the charge included definitions of conduct that were not relevant to the charged offense. Because no court in Texas has determined what conduct elemehts are involved in the offense of evading arrest or detention, we discuss this issue first. In this issue, Riggs contends the trial court erroneously defined the culpable mental states of “intentionally” and “knowingly” in the charge to the jury on guilt/innocence. Specifically, he contends that the trial court failed to properly tailor the definitions to the applicable conduct elements.

There are three “conduct elements” which may be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. Cook v. State, 884 S.W.2d 485, 487 (Tex.Crim.App.1994). An offense may contain any one or more of these, “conduct elements” which alone or in combination form the overall behavior which the. Legislature criminalized, and it is these essential “conduct elements” to which a culpable mental state must apply. Id.; Gutierrez v. State, 446 S.W.3d 36, 40 (Tex.App.-Waco 2014, pet. ref'd). Thus, the culpable mental state, definitions, in the charge must be tailored to the conduct elements of the charged offense. Cook, 884 S.W.2d at 487; Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim.App.1995); Gutierrez, 446 S.W.3d at 40. Where the charged offense does not include a particular conduct element, it is error for the court’s charge to contain a definition of the culpable mental state for that conduct element in the abstract portion of the charge. See Hughes v. State, 897 S.W.2d 285, 295-296 (Tex.Crim.App. 1994); Gutierrez, 446 S.W.3d at 40. A trial court does not err, however, in defining the culpable mental states for nature, result, and circumstances surrounding conduct when all three of the conduct elements are contained within the offense. See Patrick, 906 S.W.2d at 492 (Tex.Crim.App.1995); Gutierrez, 446 S.W.3d at 40.

The court’s charge in this case defined “intentionally” and “knowingly” according to Texas Penal Code Section 6.03. " Tex. Penal Code Ann. § 6.03(a) and (b) (West 2011). Those definitions are as follows:

(a) A person acts intentionally, or with intent, with respect to the nature of his conduct or to a result of his conduct whén it is his conscious objective or desire to engage in the conduct or cause the result.
(b) A person acts knowingly, or with .knowledge, with respect to the nature of his conduct or to circumstances surrounding his conduct when he- is aware of the nature of his conduct or that the circumstances exist. 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.

Id.

Riggs argues that the offense for which he was charged, evading arrest or detention with a vehicle, focuses on the nature of the actor’s conduct- and the circumstances surrounding his conduct but does not focus on the result of the actor’s conduct. Thus, his argument continues, the trial court’s inclusion of the result of conduct- language in the definitions was error.

A person commits the offense of evading arrest or detention .if the person “intentionally flees from a person he knows is a peace officer ;. attempting lawfully to arrest or detain him.” See Tex. Penal Code Ann. § 38.04(a) (West 2011). Where specific acts are criminalized because of their very nature, a culpable mental state must apply to committing the act itself. See Cook v. State, 884 S.W.2d 485, 487 (Tex.Crim.App.1994); McQueen v. State, 781 S.W.2d 600, 603 (Tex.Crim.App.1989). But, as charged in this case, the act of fleeing is not criminai by its very nature. See McQueen; 781 S.W.2d at 603 (the act of operating motor vehicle in the offense bf unauthorized use of a motor vehicle is not criminal by its nature). Neither' is it a result-of-conduct offense because the ' statute does not prohibit any specific result of fleeing. See id. Instead, the offense of evading arrest or detention with a vehicle is a circumstances-surrounding-the-conduct offense; the act of fleeing becomes criminal only because of the actor’s knowledge that a peace officer is attempting lawfully to arrest or detain the actor. See Huffman v. State, 267 S.W.3d 902, 908 (Tex.Crim.App.2008); McQueen, 781 S.W.2d at 603.

However, the culpable mental state of “intentionally” prescribed by the statutory-language of evading arrest or detention does not modify the circumstances surrounding the conduct, but instead, precedes the act of fleeing. A similar problem was noted by the Court of Criminal Appeals for the offense of unauthorized use of a motor vehicle in McQueen v. State, 781 S.W.2d 600, 604 (Tex.Crim.App.1989). There, the Court held that because some form of culpability must apply to those conduct elements which make the overall conduct criminal, the offense of unauthorized use of a motor vehicle encompassed two conduct elements: “that the defendant intentionally or knowingly operated a vehicle (nature of conduct) knowing that such operation was without the effective’ consent of the owner (circumstances surrounding conduct).” Id. For the reasons expressed in McQueen, we'find that the offense of evading arrest or detention alfeo includes two, and only two, conduct elements: “nature of the conduct” which applies to the element of intentionally fleeing and “circumstances surrounding the conduct” which applies to the element of knowledge that a peace officer is attempting lawfully to arrest or detain the person.

■ Thus, it was error for the trial court to include' the result-of-the-conduct element in its definitions of the’ culpable mental states of intentionally and knowingly in the abstract portion of the charge. We must now determine whether Riggs was harmed by this error.

Harm Analysis

Riggs did not object to this portion of the charge. Accordingly, we will conduct our review using the above-described standard of review for egregious harm. Along with the other Almanza factors, we may also consider the degree, if any, to which the culpable mental states were limited by the application portion of the jury charge when assessing harm. Patrick v. State, 906 S.W.2d 481, 492 (Tex.Crim.App.1995); Hughes v. State, 897 S.W.2d 285, 296 (Tex.Crim.App.1994); Cook v. State, 884 S.W.2d 485, 492 (Tex. Crim.App;1994). When the application paragraph points the jury to the appropriate portion of the definitions, this mitigates against a finding of egregious harm. See Patrick, 906 S.W.2d at 493; Reed v. State, 421 S.W.3d 24, 30 (Tex.App.-Waco 2013, pet. ref'd).

Here, the charge set out the elements of the offense and then applied those elements to the .facts of the case. Although the definitions of “intentionally” and “knowingly” set forth the three alternative conduct elements, when those terms are viewed in their factual context, it was apparent which conduct element applied to which element of the offense. For instance, the application paragraph stated that Riggs “did intentionally flee” from a “City of Hillsboro, Texas Police Officer.” Referring back to the definitions of the culpable mental states, it can be determined that Riggs’s act of fleeing is not a result of his conduct and thus the applicable portion of the “intentionally” definition is the nature of Riggs’s conduct. Further, it can be determined that Riggs’s knowledge that the “Hillsboro, Texas Police Officer” “was a peace officer, who was attempting to lawfully arrest or detain” Riggs; and thus, the applicable portion of the “knowingly” definition is the circumstances surrounding Riggs’s conduct.

Although Riggs disputed the fact that he fled or knew an officer was trying to detain him, it is clear the jury weighed more heavily.'the direct and ¡circumstantial evidence that Riggs fled while being aware that the officer was .trying to arrest or detain Riggs. Further, although Riggs’s counsel argued that the State had the burden to prove Riggs intended the results, the State focused the jury on deciding the question of the nature of Riggs’s flight and that Riggs was aware that the officer was attempting to detain him.

Riggs also argues that we should take into consideration that there are numerous alleged errors in the trial court’s charge in finding harm under this issue. Based on this record, we decline to do so. See Estrada v. State, 313 S.W.3d 274, 311 (Tex.Crim.App.2010); United States v. Bell, 367 F.3d 452, 471 (5th Cir.2004) (“The cumulative error doctrine provides relief only when constitutional errors so ‘fatally infect the trial’ that they violated the trial’s ‘fundamental fairness.’ ”).

Accordingly, Riggs was not egregiously harmed by the trial court’s erroneous inclusion in the charge of the result-of-conduct definition for the culpable mental states of the charged offense. His fourth issue is overruled.

Indictment and the Officer’s Name

In his first two issues, Riggs contends the jury charge on guilt/innocence did not comport with the indictment in that the charge did not specifically name the officer attempting to arrest or detain Riggs as did the indictment (Issue One), and the trial court commented on the weight of the evidence in the charge by instructing the jurors ,that the officer’s name was not a substantive elernent of the offense (Issue Two). Riggs objected to the charge with regard to both complaints. , Assuming without deciding that,the charge was erroneous for the.two reasons as objected to, we must determine whether Riggs suffered some harm from the error.

Harm Analysis

We will conduct our review using the above-described standard of review.

Interestingly, Riggs was the one who caused the State and the trial court to go down the particular path which resulted in the two complained of charge errors. As early as voir dire and also in opening statements, Riggs tried to impose upon the State the requirement to prove Riggs knew the name, of the officer that was pursuing Riggs, not simply that it,was a peace officer that was. in pursuit. . The charge was apparently worded as it was to prevent Riggs from arguing this potentially erroneous statement of the law to the jury. See Tillery v. State, No. 05-04-00425-CR, 2005 WL 165238, at *1-2, 2005 Tex.App. LEXIS 5.49, *3. (Tex.App.-Dallas Jan. 26, 2005, no pet.) (not designated for publication), (peace officer’s name is not a substantive element of the offense).

David Haakinson, the officer who attempted to detain Riggs, testified at trial and was the peace officer identified by name in the indictment. The charge set out the elements of the offense and the application paragraph applied the facts to the elements without reference to the name of the specific peace officer in pursuit of Riggs. There, was never any indication that any other officer attempted to detain Riggs that night. Further, based on the evidence presented, and as argued by the State before the jury, it is clear that the jury believed Riggs fled from Haakin-son knowing that a peace officer was in pursuit, although Riggs argued that he did not know any peace officer was behind him attempting to stop him. Haakinson was in a marked patrol unit, had his lights and siren on, and Riggs was in a convertible with the top down and accelerated and made evasive turns after the officer’s emergency lights and siren were activated.

Accordingly, based on our review of the record using the Almanza factors, we cannot conclude that Riggs suffered some harm from the trial court’s errors, if any, in the charge regarding the peace officer’s name. Riggs’s first and second issues are overruled.

Deñnition of “Fleeing”

In his third issue, Riggs asserts that the trial court erred by providing a nonstatutory definition of “fleeing” in the charge on guilt/innocence, thus improperly commenting on the evidence. Fleeing was defined as “anything less than prompt compliance with an officer’s direction to, stop.” Although the definition did not point to any specific piece of evidence for special attention, it did improperly focus the jury on the type of evidence that would support a finding that Riggs was “fleeing.” See Kirsch v. State, 357 S.W.3d 645, 652 (Tex.Crim.App.2012).

Harm Analysis

Because Riggs did not object to this portion of the charge, we will conduct our review using the above-described standard of review.

Although the .improper definition was included in the abstract portion at the. beginning of the charge, the application paragraph did not repeat it. At trial, Riggs disputed that he “fled,” introducing his own video showing the distance covered and road condition during the daylight hours and emphasizing that the pursuit.was less than a minute from the time, the officer activated his lights until Riggs cam,e to a stop. However, testimony presented by the State and the ■ dash-camera video of the chase, showed that Riggs had several opportunities to stop, sped up after Haakinson activated his overhead lights, and only came to a stop after proceeding down his driveway and into his -backyard. The State argued Riggs failed to promptly stop; however, Riggs did not focus on this aspect .of the offense. Riggs argued that he did not flee because he did not speed and if he had wanted to evade, he would have “[l]eft it in the dust.”- He also argued that he did not know a peace officer was. behind him -or that he had a warrant out; and thus, had no reason to evade.

Based on our review of the record using the Almanza factors, we cannot conclude that Riggs suffered egregious harm from the trial court’s inclusion of the definition of the 'non-statutory term‘“fleeing” in the abstract portion of the court’s charge. Riggs’s third'issue is overruled.

Reasonable Doubt Instruction

In his fifth and final issue, Riggs contends the trial court erred by failing to include a reasonable doubt instruction in the charge on punishment regarding evidence of an extraneous offense.- A trial judge must sua sponte instruct the jury at the punishment phase that the State must prove any extraneous offenses beyond a reasonable doubt. Tex.Code Ceim. PROC, art. 37.07, § 3(a) (West 2006); Delgado v. State, 235 S.W.3d 244, 252 (Tex.Crim.App.2007); Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000). Because the trial court did not include this instruction, the trial court erred.

Harm Analysis

Because Riggs did not object to this portion of the charge, we will conduct our review using the above-described standard of review. Additionally, in determining whether Riggs was egregiously harmed pursuant to the Almanza factors, we must consider the impact of the omission of a reasonable doubt instruction concerning the extraneous offense. See Ellison v. State, 86 S.W.3d 226, 227 (Tex.Crim.App.2002); Martinez v. State, 313 S.W.3d 358, 369-70 (Tex.App.-Houston [1st Dist.] 2009, pet. ref'd).

Although the trial court failed to instruct the jury to not consider the extraneous evidence unless it was proven beyond a reasonable doubt, the charge in the sentencing phase of the trial generally told the jury that the State had the burden of proof throughout the trial. Both the State and Riggs argued to the jury that the State had to prove beyond a reasonable doubt that Riggs committed the extraneous offense.

The extraneous offense evidence provided during punishment was an accusation that Riggs shot another person in the arm after a confrontation. That offense had been charged but had not yet been tried at the time of this trial. Although Riggs denied that he shot anyone, the alleged victim and a;witness testified that Riggs shot the alleged victim,

Further, the punishment Riggs received does not show that he was impacted by the failure of the trial court to include a reasonable doubt instruction in the charge. At the beginning of the punishment phase of the trial, Riggs pled true to two prior felony convictions; thus, the range of punishment for the evading offense was enhanced to 25 to 99 years or life' in prison; The State then proved one other final felony conviction. Because Riggs had three prior felony convictions and another charged felony, the State argued for a sentence of at least 75 years in prison. The jury assessed a sentence of 65 years in prison.

Accordingly, based on our review of the record pursuant to the Almanza factors, we cannot conclude that Riggs was egregiously harmed from the trial court’s failure to include a reasonable doubt instruction as to extraneous offense evidence in the charge on punishment. His fifth issue is overruled.

Conclusion

Having overruled each issue on appeal, we affirm the trial court’s judgment.

(Justice Davis concurring and dissenting)

REX D. DAVIS Justice,

concurring and dissenting.

I join the majority opinion on issues one, two, and three, and I concur in the disposition of issue four, but I disagree with issue five’s disposition.' • ’

Riggs allegedly fled from a police officer who was pursuing him because Riggs was wanted on a Class C warrant and his driver’s license, was suspended. The car chase lasted less than a minute and covered four-tenths of a mile. It ended when Riggs parked in his own backyard, got out of his car, and immediately walked to the patrol car. There was no injury or property damage. Riggs was charged with the third-degree felony of evading arrest or detention with a vehicle, which has a punishment range of two to ten years. Tex. Penal Code Ann. § 12.34 (West 2011), § 38.04(a), (b)(2)(A) (West Supp.2015).

Riggs was also charged as a habitual felon. He pled “true” to two prior felony convictions (a 1990 conviction for delivery of a controlled substance and a 1993 conviction for possession of a prohibited weapon). He pled “not true” to a 2005 felony conviction for possession -of a firearm by a felon, but the jury found it “true.” These prior non-violent felonies enhanced the punishment range to 25 to 99 years or life. Tex. Penal Code Ann. § 12.42(d) (West Supp.2015),

Wendell Harris testified that, after a verbal confrontation with. Riggs and his two sons stemming from Riggs’s oldest son’s past affair with Harris’s wife, he heard a gunshot that struck him in the right hand. Harris turned around and saw Riggs pointing a gun at him, and as he fled, Riggs kept shooting at him. Leslie Johnson, Harris’s cousin, said she saw Riggs shoot Harris. Johnson admitted she -had a “back and forth” relationship with Riggs’s nephew; and she had “messed around” with one of Riggs’s sons.

Riggs testified that the verbal confrontation with Harris was because Harris had been “meddling” with Riggs’s son who had had an affair with Harris’s wife. Riggs said that he himself had also had a relationship with Harris’s wife. Riggs testified that he did not have a gun that night. He said that because Harris was cussing him and his sons, he turned to go away and told his sons to come with him, and then he heard two shots and everyone ran. Riggs testified that he was not guilty' of shooting Harris.

The trial court must give a reasonable-doubt instruction at punishment, even if not requested, regarding extraneous-offense evidence; the trial court must instruct the jury that the extraneous-offense evidence may not be considered in assessing punishment until the jury is satisfied beyond a reasonable doubt that the offense is attributable to the defendant. Huizar v. State, 12 S.W.3d 479, 484 (Tex.Crim.App.2000) (op. on reh’g). This instruction is especially important when the defendant, like Riggs, testifies and denies committing the extraneous offense.

The trial court failed to give a reasonable-doubt instruction, and Riggs, age 59, was given a 65-year prison sentence for what otherwise would have been a nonviolent third degree felony. Cf. Graves v. State, 176 S.W.3d 422, 435 (Tex.App.-Houston [1st Dist.] 2004, pet. struck) (finding error harmless in part because defendant received 8-year sentence, “far 'below the maximum,' and only three ‘years above the minimum”). Because I believe that the totality of the record shows -that Riggs suffered egregious harm from the trial court’s error in failing to provide a reasonable-doubt instruction in the .punishment charge for the controverted extraneous offense of aggravated assault with a deadly weapon, I respectfully dissent. • I would sustain issue five and 'remand the case for a new punishment hearing.  