IN THE
TENTH COURT OF APPEALS
No. 10-13-00399-CR
PAUL CRANSTON STEELE,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the County Court
Falls County, Texas
Trial Court No. 12-09271
MEMORANDUM OPINION
In one issue, appellant, Paul Cranston Steele, challenges his conviction for
assault-family violence. See TEX. PENAL CODE ANN. § 22.01(a)(1) (West Supp. 2014).
Specifically, Steele argues that he was egregiously harmed by the charge, which
included instructions about three separate culpable mental states and an instruction
that jury unanimity was not required as to the applicable culpable mental state.
Because we conclude that Steele was not egregiously harmed by the charge, we affirm.
I. BACKGROUND
In the instant case, Steele was accused of intentionally, knowingly, or recklessly
causing bodily injury to Kimberly Craft, by punching her in the left arm. See id. The
indictment alleged that Steele committed assault-family violence against Craft on May
10, 2012. Thereafter, the case proceeded to trial.
At the conclusion of the evidence, the jury was instructed regarding the law of
the case. The charge included definitions for the intentional, knowing, and reckless
culpable mental states, as well as the following language: “The jury does not have to
agree on whether the defendant either intentionally or knowingly or recklessly injured
the victim[;] but each juror must find that the state has proven one of the intents as
required above.” It is this language that is the basis for Steele’s appellate complaint.
The jury ultimately found Steele guilty of the charged offense. Thereafter, the
trial court assessed punishment at confinement in the county jail for one year with a
$500 fine. The trial court also certified Steele’s right of appeal, and this appeal followed.
II. ANALYSIS
In his sole issue, Steele asserts that the jury charge was egregiously harmful
because it drew undue attention to the culpable mental states. More specifically, Steele
contends that the charge included three separate culpable mental states and an
instruction that jury unanimity was not required as to the applicable culpable mental
state. According to Steele, the instruction regarding unanimity amounted to an
improper judicial comment. And as a result of the complained-of error, Steele alleges
Steele v. State Page 2
that the charge instructions marshaled “the law in favor of the State,” which “implicates
the trial court’s required appearance of neutrality.”
A. Applicable Law
In reviewing a jury-charge issue, an appellate court’s first duty is to determine
whether error exists in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim.
App. 1996). If error is found, the appellate court must analyze that error for harm.
Middleton v. State, 125 S.W.3d 450, 453-54 (Tex. Crim. App. 2003). If an error was
properly preserved by objection, reversal will be necessary if the error is not harmless.
Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985). Conversely, if error was
not preserved at trial by a proper objection, a reversal will be granted only if the error
presents egregious harm, meaning appellant did not receive a fair and impartial trial.
Id. To obtain a reversal for jury-charge error, appellant must have suffered actual harm
and not just 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).
Steele admits that he did not object to the jury charge; thus, he must show
egregious harm. See Almanza, 686, S.W.2d at 171. 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 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).
Steele v. State Page 3
B. Discussion
As noted above, Steele complains about the following instruction contained in
the charge: “The jury does not have to agree on whether the defendant either
intentionally or knowingly or recklessly injured the victim[;] but each juror must find
that the state has proven one of the intents as required above.” On appeal, Steele does
not contend that the instruction is an incorrect statement of the law. Instead, Steele
argues that the instruction constitutes an improper judicial comment because it was
unnecessary, and because it focuses “the jury’s attention on the type of evidence.”
Under Texas law, the trial court must provide the jury with “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 facts or using any argument
in [its] charge calculated to arouse the sympathy or excite the passions of the jury.” TEX.
CODE CRIM. PROC. ANN. art. 36.14 (West 2007); see Walters v. State, 247 S.W.3d 204, 208
(Tex. Crim. App. 2008). “The law applicable to a case plainly includes laws from any
source concerning which a jury instruction is necessary for resolution of the factual
issues presented.” Atkinson v. State, 923 S.W.2d 21, 27 (Tex. Crim. App. 1996).
The choice of language by the trial judge, though trying to clarify the
statute, is inappropriate if its draws particular attention to the evidence
regarding the defendant’s state of mind. Even a seemingly neutral
instruction about a particular type of evidence constitutes an
impermissible comment on the weight of the evidence because such an
instruction singles out a particular piece of evidence for special attention.
Russell v. State, 43 S.W.3d 66, 69 (Tex. App.—Waco 2001, no pet.) (citing TEX. CODE CRIM.
PROC. ANN. art. 36.14; Zani v. State, 758 S.W.2d 233, 245 (Tex. Crim. App. 1988)).
Steele v. State Page 4
Based on our review of the record, we do not believe that the complained-of
instruction constitutes an impermissible comment on the weight of the evidence. The
trial court’s instruction is a correct, neutral statement of the law regarding unanimity
and the operative criminal statute and does not “pluck out any specific piece of
evidence.”1 See TEX. PENAL CODE ANN. § 22.01(a); see also Walters, 247 S.W.3d at 214
(noting that “all jury instructions relating to a Penal Code offense or defense must be
statutorily based”); Ngo v. State, 175 S.W.3d 738, 745 n.21 & 746-50 (Tex. Crim. App.
2005) (“The unanimity requirement is undercut when a jury risks convicting the
defendant on different acts, instead of agreeing on the same act for a conviction.”);
Francis v. State, 36 S.W.3d 121, 125 (Tex. Crim. App. 2000) (holding that a jury charge
which allows for a non-unanimous verdict concerning what specific criminal act the
defendant committed is error); Kitchens v. State, 823 S.W.2d 256, 258 (Tex. Crim. App.
1991) (stating that although the indictment may allege differing methods of committing
an offense in the conjunctive, it is proper to instruct the jury in the disjunctive).
Accordingly, we cannot conclude that the complained-of instruction constituted an
improper judicial comment and, thus, was erroneously included in the charge. See
Brown v. State, 122 S.W.3d 794, 800-01 (Tex. Crim. App. 2003).2
1 The operative statute—section 22.01(a) of the Penal Code—provides that a person commits
assault if he “intentionally, knowingly, or recklessly causes bodily injury to another, including the
person’s spouse . . . .” TEX. PENAL CODE ANN. § 22.01(a) (West Supp. 2014).
2 In Brown, the Court of Criminal Appeals noted the following:
But when the trial court, the only source of law the jury has, picks out only one such
inference and instructs the jury that that one, through rebuttable, is a presumption
provided by law, the court gives the force of law to that one possible
Steele v. State Page 5
And even if the complained-of instruction was erroneously included in the
charge, Steele has not adequately demonstrated that he was egregiously harmed. In
particular, the jury heard testimony regarding Craft’s injuries and saw numerous
pictures depicting her injuries. Moreover, as stated above, the complained-of
instruction was a correct, neutral statement of the law meant to clarify the applicable
culpable mental states. Furthermore, neither Steele’s counsel nor the prosecutor
mentioned the instruction in closing arguments. And finally, Steele does not
demonstrate that he suffered actual harm as a result of the complained-of instruction.
See Sanchez, 376 S.W.3d at 775 (requiring appellant to demonstrate actual, not merely
theoretical, harm to obtain a reversal for jury-charge error); see also Arline, 721 S.W.2d at
352 (same). Therefore, based on the foregoing, we overrule Steele’s sole issue on
appeal.
III. CONCLUSION
We affirm the judgment of the trial court.
AL SCOGGINS
Justice
inference . . . . Instructing the jury that it does constitutes, in effect, a comment on the
weight of the evidence. . . . Finally, a court’s jury instruction could violate article 36.14
less obviously. For example, it might obliquely or indirectly convey some opinion on the
weight of the evidence by singling out that evidence and inviting the jury to pay
particular attention to it. On this near end of the “improper-judicial comment” spectrum
is an instruction that is simply unnecessary and fails to clarify the law for the jury.
122 S.W.3d 794, 800-01 (Tex. Crim. App. 2003).
Steele v. State Page 6
Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Chief Justice Gray concurring with a note)*
Affirmed
Opinion delivered and filed April 23, 2015
Do not publish
[CR25]
*(Chief Justice Gray concurs in the judgment to the extent it affirms the trial court’s
judgment. A separate opinion will not issue.)
Steele v. State Page 7