Full Opinion (html_with_citations)

                                 IN THE
                         TENTH COURT OF APPEALS

                                No. 10-22-00103-CR

REGINALD HARRIS,
                                                           Appellant
v.

THE STATE OF TEXAS,
                                                           Appellee



                           From the 66th District Court
                               Hill County, Texas
                             Trial Court No. F-141-21


                          MEMORANDUM OPINION


      In two issues, appellant, Reginald Harris, contends that the trial court: (1) failed

to properly define the applicable culpable mental states in the jury charge or tailor the

definitions of the culpable mental states to the relevant conduct elements; and (2)

assessed unauthorized fees. We affirm as modified.
                                        Background

        Harris was charged by indictment with aggravated assault against a public

servant. Specifically, the indictment alleged that Harris,

        intentionally, knowingly, or recklessly cause[d] serious bodily injury to
        Chris Gonzales by striking him on the head with a wooden table leg, and
        the defendant did then and there know that the said Chris Gonzales was a
        public servant, to-wit: a Hill County Corrections Officer, in the lawful
        discharge of an official duty, to-wit: to begin the book-in progress [sic].

See TEX. PENAL CODE ANN. § 22.02(a)(1), (b)(2)(B). A jury convicted Harris of the charged

offense and made a deadly-weapon finding. The jury assessed punishment at thirty years

in prison. The trial court sentenced Harris in accordance with the jury’s verdict and

signed a judgment reflecting as such. Additionally, the trial court assessed $290 in court

costs and $67 in reimbursement fees. The trial court certified Harris’s right of appeal, and

this appeal followed.

                                     The Jury Charge

        In his first issue, Harris argues that the trial court failed to properly define the

applicable culpable mental states in the jury charge or tailor the definitions of the culpable

mental states to the relevant conduct elements. Assuming, without deciding, the jury

charge contains error, we cannot conclude that Harris was egregiously harmed.

STANDARD OF REVIEW

        In reviewing a jury-charge issue, an appellate court’s first duty is to determine

whether the charge contains error. Hutch v. State,
922 S.W.2d 166, 170
 (Tex. Crim. App.


Harris v. State                                                                         Page 2
1996). If the jury charge contains error, the appellate court must analyze that error for

harm. Middleton v. State,
125 S.W.3d 450, 453-54
 (Tex. Crim. App. 2003). The court will

reverse if an error was properly preserved by objection and is not harmless. Almanza v.

State,
686 S.W.2d 157, 171
 (Tex. Crim. App. 1985). Conversely, where a party does not

properly preserve error by proper objection, the court will only reverse for egregious

harm, meaning Harris did not receive a fair and impartial trial.
Id.
 To obtain a reversal

for jury-charge error, Harris must have suffered actual harm and not merely theoretical

harm. Sanchez v. State,
376 S.W.3d 767, 775
 (Tex. Crim. App. 2012); Arline v. State,
721 S.W.2d 348, 352
 (Tex. Crim. App. 1986).

        Harris did not object to the jury charge in the trial court; thus, he must show

egregious harm. See Almanza,
686 S.W.2d at 171
. In examining the record for egregious

harm, we consider the 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 v. State,
202 S.W.3d 137, 144
 (Tex. Crim. App. 2006).          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).




Harris v. State                                                                       Page 3
DISCUSSION

         The Entirety of the Jury Charge

         The culpable mental states in the penal code encompass three possible conduct

elements that may be involved in an offense: (1) nature of the conduct; (2) result of the

conduct; and (3) circumstances surrounding the conduct. TEX. PENAL CODE ANN. § 6.03;

see McQueen v. State,
781 S.W.2d 600, 603
 (Tex. Crim. App. 1989). When an offense is

delineated explicitly as to the type of conduct, the trial court should limit the statutory

definitions in the jury charge to the culpable mental state required. Price v. State,
457 S.W.3d 437, 441
 (Tex. Crim. App. 2015); Cook v. State,
884 S.W.2d 485, 491
 (Tex. Crim. App.

1994).

         Harris was charged by indictment with aggravated assault on a public servant by

using or exhibiting a deadly weapon. See TEX. PENAL CODE ANN. § 22.02(a)(1). The

elements of aggravated assault with a deadly weapon against a public servant are (1) a

person (2) intentionally, knowingly, or recklessly (3) causes serious bodily injury to

another (4) and uses or exhibits a deadly weapon (5) against a person the actor knows if

a public servant while the public servant is lawfully discharging an official duty. Id. §

22.02(a), (b)(2)(B); see Stanley v. State,
470 S.W.3d 664, 670
 (Tex. App.—Dallas 2015, no

pet.).

         As charged in the indictment in this case, assault on a public servant required

proof of two separate conduct elements—result of the conduct and circumstances


Harris v. State                                                                      Page 4
surrounding the conduct—with different culpable mental states as to the two separate

conduct elements. See TEX. PENAL CODE ANN. § 22.01(a), (b)(1); Cole v. State,
46 S.W.3d 427, 433-34
 (Tex. App.—Fort Worth 2001, pet. ref’d). The result-of-conduct element

required proof that Harris “intentionally, knowingly, or recklessly cause[d] serious

bodily injury to Chris Gonzales.” See TEX. PENAL CODE ANN. § 22.01(a)(1); Cole,
46 S.W.3d at 434
; Brooks v. State,
967 S.W.2d 946, 950
 (Tex. App.—Austin 1998, no pet.) (describing

assault as a result-oriented offense and explaining that assault requires “causing a certain

result”). The circumstances-surrounding-conduct element required proof that Harris

knew that Gonzales was a public servant. See TEX. PENAL CODE ANN. § 22.01(b)(2)(B)

(making the offense of assault a third-degree felony when the “offense is committed

against . . . person the actor knows if a public servant while the public servant is lawfully

discharging an official duty”).

        Regarding the applicable culpable mental states, the abstract portion of the charge

providing the following:

               A person acts intentionally, or with intent, with respect to the nature
        of his or her conduct or a result of his or her conduct when it is his or her
        conscious objective or desire to engage in the conduct or cause the result.

                A person acts knowingly, or with knowledge, with respect to the
        nature of his or her conduct or to circumstances surrounding his or her
        conduct when he or she is aware of the nature of his or her conduct or that
        the circumstances exist. A person acts knowingly, or with knowledge, with
        respect to the result of his or her conduct when he or she is aware that his
        or her conduct is reasonably certain to cause the result.



Harris v. State                                                                          Page 5
               A person acts recklessly, or is reckless, with respect to the results of
        his or her conduct when he or she is aware of but consciously disregards a
        substantial and unjustifiable risk that the result will occur. The risk must
        be of such a nature and degree that its disregard constitutes a gross
        deviation from the standard of care that an ordinary person would exercise
        under all circumstances, as viewed from the actor’s standpoint.

These instructions defining the culpable mental states included language as to all the

“conduct elements.” See McQueen,
781 S.W.2d at 603
; see also TEX. PENAL CODE ANN. §

6.03.

        Nevertheless, the application portion of the jury charge stated:

        Now, if you find and believe from the evidence beyond a reasonable doubt
        that on or about the 7th day of February 2021, in Hill County, Texas, the
        defendant, REGINALD HARRIS, did then and there intentionally,
        knowingly, or recklessly cause bodily injury to Chris Gonzalez [sic] by
        striking him on or about the head with a table leg and the Defendant used
        or exhibited a deadly weapon, to-wit: a table leg, and the Defendant did
        then and there know that the said Chris Gonzalez [sic] was a public servant,
        to-wit: a Hill County Corrections Officer, in the lawful discharge of an
        official duty as a Hill County Corrections Office, or on account of an
        exercise of official power or performance of an official duty by Chris
        Gonzalez [sic] as a public servant, then you will find the Defendant guilty
        as charged in the indictment.

The jury was instructed that it could convict Harris of aggravated assault on a public

servant only if it found that he had intentionally, knowingly, or recklessly caused the

result (serious bodily injury), and that he did so under the requisite circumstances of

conduct (with knowledge that Officer Gonzales was a public servant). This instruction is

consistent with the statutorily prohibited conduct. See TEX. PENAL CODE ANN. § 22.01(a),

(b)(2)(B); see also Medina v. State,
7 S.W.3d 633, 640
 (Tex. Crim. App. 1999) (“Where the


Harris v. State                                                                           Page 6
application paragraph correctly instructs the jury, an error in the abstract instruction is

not egregious.”); Patrick v. State,
906 S.W.2d 481, 493
 (Tex. Crim. App. 1995) (“We

conclude that because the facts, as applied to the law in the application paragraph,

pointed the jury to the appropriate portion of the definitions, no harm resulted from the

court’s failure to limit the definitions of culpable mental states to proving the conduct

element of the underlying offense.”); Hughes v. State,
897 S.W.2d 285, 296
 (Tex. Crim. App.

1994) (noting that in considering the jury charge as a whole, when the purported error

involves the misstatement of the required culpable mental states, we “may consider the

degree, if any, to which the culpable mental states were limited by the application

portions of the jury charge”).

        Accordingly, we conclude that consideration of the entire jury charge, as applied

in the factual context of this case, weighs against a finding of egregious harm.

        State of the Evidence

        The second factor requires us to review the state of the evidence, including the

contested issues and weight of probative evidence. Villarreal v. State,
453 S.W.3d 429, 433

(Tex. Crim. App. 2015). Under this factor, “we look to the state of the evidence to

determine whether the evidence made it more or less likely that the jury charge caused

appellant actual harm.” Arrington v. State,
451 S.W.3d 834, 841
 (Tex. Crim. App. 2015).

        Here, there is ample evidence of Harris’s guilt, which mitigates any harm that the

jury charge may have caused. Investigator Kyle Nevil of the Hill County Sheriff’s Office


Harris v. State                                                                      Page 7
testified that Officer Gonzales was wearing his official uniform and performing his

official duties at the time of the attack. Nevil further testified that Harris used a deadly

weapon, a table leg, when assaulting Officer Gonzales and that Officer Gonzales suffered

bodily injury because of the attack. The State then played surveillance footage, which

captured the attack. Nevil recounted that the video footage showed Harris rip a leg from

a table and run toward Sergeant Teresa Gandee, who was also in a jailer uniform. Nevil

further testified that the video footage showed Harris strike a computer monitor and a

Xerox copy machine with the table leg. Sergeant Gandee called for help, and Officer

Gonzales responded. When Officer Gonzales arrived, Harris struck Officer Gonzales in

the head forcefully with the table leg while Officer Gonzales was wearing his official

uniform and performing official duties. Officer Gonzales bled all over the floor and the

wall of the jail and required six staples on the back of his head and thirteen staples on the

top of his head to close the wounds. While Officer Gonzales was fighting with Harris on

the floor, Officer Gonzales’s jailer keys fell out of his pants, and Harris grabbed the keys.

        Nevil noted that Harris admitted to using drugs and that Harris later exclaimed,

“I was on something, Brother.” Harris testified that he was upset and afraid of being put

in a regular holding cell because he did not want to be around anyone else who may have

had COVID-19. Harris explained that he struck Officer Gonzales with the table leg out

of fear of COVID-19, but he acknowledged that he was wrong and not justified in hitting




Harris v. State                                                                        Page 8
Officer Gonzales. Later in his testimony, Harris noted that he saw Officer Gonzales a few

weeks later “back to his usual thing” and that he apologized.

        It is also noteworthy that, in arguing for a mistake-of-fact instruction related to

COVID-19, defense counsel confirmed “[h]e had to admit the elements of the crime, that

he was guilty. We have done that. We have maintained that the entire trial.” From this

evidence, a reasonable factfinder could conclude beyond a reasonable doubt that Harris

committed the offense of aggravated assault of a public servant. As such, we cannot say

that this factor weighs in favor of a finding of egregious harm.

        Arguments of Counsel

        Under this factor, we consider whether any statements made during the trial by

the prosecutor, the defense counsel, or the trial court may have exacerbated or

ameliorated the error in the jury charge. Arrington,
451 S.W.3d at 844
. During its closing

argument, the State detailed Harris’s intent to commit the assault and made a brief

statement about Officer Gonzales’s status as a public servant. However, defense counsel

acknowledged the following during closing argument: “One of the indisputable facts is

that an assault occurred. . . . The other is that Mr. Harris committed an assault.” In other

words, Harris’s defensive strategy was to not dispute that he committed an assault.

Rather, defense counsel emphasized Harris’s erratic behavior at and around the time of

the attack and that he should have been taken to the hospital and not placed in a holding

cell. Defense counsel also challenged some of the actions of the jailers, especially the fact


Harris v. State                                                                        Page 9
that Sergeant Gandee, without backup, let Harris out of the holding cell unrestrained.

Later, defense counsel reiterated that: “Obviously, I made it very clear to you that Mr.

Harris is guilty.” However, according to defense counsel, the system failed Harris by not

taking him to the hospital on account of his erratic behavior. In rebuttal, the State urged

that Harris is unwilling to take responsibility for his actions and that all the arguments

made by defense counsel during closing do not negate the fact that Harris intentionally,

knowingly, or recklessly struck Officer Gonzales, a public servant.        The State also

emphasized that Harris did not call any witnesses to opine on his mental health.

        While there was discussion of the culpable mental states, Harris conceded that the

elements of assault were met. Furthermore, the parties did not emphasize Harris’s

knowledge of Officer Gonzales’s status as a public servant. Accordingly, we cannot say

that the closing arguments of the parties exacerbated the purported error in the jury

charge. Therefore, we conclude that this factor does not weigh in favor of a finding of

egregious harm.

        Other Relevant Information in the Record

        As to the fourth factor, Harris contends that there are no other considerations in

the record that are relevant to the egregious-harm analysis. We agree. As such, this factor

weighs against a finding of egregious harm.




Harris v. State                                                                     Page 10
Summary

        Based on the foregoing, we conclude that any error in the abstract portion of the

charge was not calculated to injure Harris’s rights or deprive him of a fair and impartial

trial. See Almanza,
686 S.W.2d at 171
; see also Stuhler,
218 S.W.3d at 719
; Sanchez,
209 S.W.3d at 121
. We overrule Harris’s first issue.

                                       Court Costs

        In his second issue, Harris asserts that the trial court assessed $12 in

reimbursement fees that are not supported by the record or the facts. The State agrees.

        Here, the trial court assessed $290 in court costs and $67 in reimbursement fees

with no fine or restitution. The attached order to withdraw funds indicated that the total

amount of court costs, fees, fines, and restitution incurred was $357, which is the

summation of the $290 in court costs and $67 in reimbursement fees assessed in the trial

court’s judgment. However, the certified bill of costs lists the balance due of $345, which

is $12 less than the amount assessed in the trial court’s judgment and recited in the

attached order to withdraw funds.

        Included in the certified bill of costs are the “State Consolidated Court Costs,”

which are authorized by section 133.102(a)(1) of the Texas Local Government Code. See

TEX. LOC. GOV’T CODE ANN. § 133.102(a)(1). Furthermore, the line items in the certified

bill of costs corresponding with “Clerk of the Court [$40],” “Count & District Court

Technology Fund [$4],” “County Jury Fund [$1],” “County Records Mgmnt &


Harris v. State                                                                     Page 11
Preservation [$25],” “County Specialty Court Acct [$25],” and “Courthouse Security

[$10]” account for the local consolidated fee that is authorized by section 134.101 of the

Texas Local Government Code. See id. § 134.101. The remaining line items in the certified

bill of costs—“Peace Officer: Commit or Release from Jail [$5]” and “Peace Officer:

Exec/Proc AW/Capias/Capias ProFine County [$50]”—are authorized under section

102.011(a)(1) and (a)(2). See TEX. CODE CRIM. PROC. ANN. art. 102.011(a)(1)-(2). These are

all the fees listed in the certified bill of costs, and the summation of these fees is $345.

There is no justification in this record for the additional $12 in reimbursement fees

assessed in the trial court’s judgment and referenced in the order to withdraw funds. As

such, we agree with Harris and the State that both the trial court’s judgment and the order

to withdraw funds should be modified to reduce the amount of reimbursement fees owed

by $12. See TEX. R. APP. P. 43.2(b); Bigley v. State,
865 S.W.2d 26, 27-28
 (Tex. Crim. App.

1993); Nolan v. State,
39 S.W.3d 697, 698
 (Tex. App.—Houston [1st Dist.] 2001, no pet.)

(“An appellate court has the power to correct and reform a trial court judgment ‘to make

the record speak the truth when it has the necessary data and information to do so, or

make any appropriate order as the law and nature of the case may require.’” (quoting

Asberry v. State,
813 S.W.2d 526, 529
 (Tex. App.—Dallas 1991, pet. ref’d)); see also Trotter

v. State, No. 02-20-00042-CR,
2021 Tex. App. LEXIS 3501
, at *8 (Tex. App.—Fort Worth

May 6, 2021, no pet.) (mem. op., not designated for publication) (modifying both the




Harris v. State                                                                      Page 12
judgment and the order to withdraw funds to reduce the amount of reparations owed).

Accordingly, we sustain Harris’s second issue.

                                       Conclusion

        Having sustained Harris’s second issue, we modify the judgment and the attached

order to withdraw funds to reduce the amount of reimbursement fees owed by $12. We

affirm the trial court’s judgment as modified.




                                                      STEVE SMITH
                                                      Justice

Before Chief Justice Gray,
       Justice Johnson,
       and Justice Smith
(Chief Justice Gray concurs)
Affirmed as modified
Opinion delivered and filed December 7, 2022
Do not publish
[CRPM]




Harris v. State                                                                 Page 13