IN THE
TENTH COURT OF APPEALS
No. 10-08-00411-CR
JOSHUA JIMENEZ,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 19th District Court
McLennan County, Texas
Trial Court No. 2008-1687-C1
MEMORANDUM OPINION
Joshua Jimenez was convicted of aggravated robbery, a first degree felony. TEX.
PENAL CODE ANN. § 29.03 (Vernon 2003). A jury assessed his punishment at 55 years in
prison and a fine of $1,100. Jimenez appeals. Because there was no charge error, the
trial court’s judgment is affirmed.
In one issue, Jimenez complains that the trial court’s charge to the jury on
guilt/innocence failed to limit the culpable mental states as to the corresponding
conduct elements of aggravated robbery as alleged in the indictment. Jimenez contends
those corresponding conduct elements are “use/exhibition of a deadly weapon,”
“threatened or placed in fear of imminent bodily injury or death,” and “in the course of
committing theft.” Jimenez supplies a sample charge that includes culpable mental
states for all the corresponding conduct elements. In his brief, Jimenez only contends
the trial court’s failure to provide a culpable mental state for the aggravating element of
the use or exhibition of a deadly weapon caused him egregious harm; accordingly, we
need not decide whether all of the corresponding conduct elements require a charge on
a culpable mental state. Jimenez claims this charging failure caused egregious harm
because the evidence was contested as to what he had in his hand during the robbery.
We have previously held that a second culpable mental state is not required to be
proved in connection with the aggravating element of the use of a deadly weapon.
Wade v. State, 951 S.W.2d 886, 889 (Tex. App.—Waco 1997, pet. ref’d). It follows then
that the trial court was not required to instruct the jury on a culpable mental state for
use or exhibition of a deadly weapon and did not err in failing to do so. Although
Jimenez implies that the Court of Criminal Appeals has held otherwise in Bailey v. State,
it has not. See Bailey v. State, 38 S.W.3d 157 (Tex. Crim. App. 2001).
Accordingly, because the trial court did not err in failing to instruct the jury on a
culpable mental state for the use or exhibition of a deadly weapon, Jimenez’ sole issue is
overruled.
The trial court’s judgment is affirmed.
TOM GRAY
Chief Justice
Jimenez v. State Page 2
Before Chief Justice Gray,
Justice Reyna, and
Justice Davis
Affirmed
Opinion delivered and filed November 10, 2009
Do not publish
[CRPM]
Jimenez v. State Page 3