Kenneth Ray Morgan v. State

IN THE
TENTH COURT OF APPEALS

No. 10-10-00367-CR
No. 10-10-00371-CR

KENNETH RAY MORGAN,
Appellant
v.

THE STATE OF TEXAS,
Appellee

From the 54th District Court
McLennan County, Texas
Trial Court Nos. 2010-611-C2 and 2010-610-C2

MEMORANDUM OPINION

Kenneth Ray Morgan appeals from convictions for the offenses of Violation of

Protective Order and Assault by Occlusion.1 TEX. PEN. CODE ANN. §§ 25.07;

22.01(b)(2)(B) (West 2011). After pleading true to an enhancement paragraph on each

charge, Morgan was sentenced to fifteen years in prison and a $5,000 fine on each

charge.

The offenses occurred at the same time, were tried together, and one jury

deliberated on both offenses simultaneously. The result was a conviction for each of the

1 Morgan was tried jointly for these offenses; however, two separate charges were submitted to the jury.
offenses. Due in large part to the complexity of trying, and thus submitting separate

jury charges for each offense, the charges submitted contained a number of problems

including multiple improper citations to statutes, omitted definitions, definitions and

instructions included in one charge that were needed in the other charge or were

unnecessary to the charge in which they were included, references to issues that had

been dropped from the indictment, omitted elements of the offense, assumed the

existence of an element of the offense, and expanded the culpable mental state, also

known as mens rea, beyond the indictment thus allowing a finding of guilt on an offense

other than as included or alleged in the indictment. While the verdict of the jury may

be the proper one because the evidence of guilt was very strong, upon the jury charges

as submitted we cannot say that the numerous errors did not cause Morgan egregious

harm. It seems somewhat comparable to a calculus student that may have ultimately

arrived at the correct answer but due to multiple errors in working through the

problems as shown by his work, it was not an answer for which the instructor can give

any credit.

Specifically, Morgan complains that the respective guilt-innocence jury charge in

the guilt-innocence phase was defective because essential elements were omitted from

the application paragraph in the protective order charge, statutory definitions were

omitted in both jury charges, improper mens rea instructions were included in both jury

charges, the indictment was impermissibly broadened in the assault jury charge, and

the assault jury charge contained a comment on the weight of the evidence.

Because we find that the charges were erroneous and that Morgan was

Morgan v. State Page 2
egregiously harmed, we reverse the judgments of the trial court and remand for new

trials.

Standard of Review for Charge Error

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 Morgan did not object to

either of the jury charges.

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 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).

Because these causes were tried together, we are addressing the issues in one

opinion, as it is necessary to consider the entire record when determining harm from

error in the jury charge, and we are of the opinion that the effect of the two erroneous

charges submitted to the same jury increased the harm. We will address each issue

Morgan v. State Page 3
separately as briefed by the parties; however, we will only perform one harm analysis

for each offense.

VIOLATION OF PROTECTIVE ORDER

In the appeal of the violation of a protective order conviction, Morgan first

complains that the trial court erred by failing to include three elements of the offense of

violation of a protective order in the jury charge. The application paragraph of the

charge as submitted to the jury stated:

Now, if you find from the evidence beyond a reasonable doubt that on or
about the 14th day of September, 2009, in McLennan County, Texas, the
defendant, Kenneth Ray Morgan, did then and there intentionally or
knowingly violate the terms of an order issued by Billy Martin of the
Justice of the Peace Court Precinct 1, Place 2 of McLennan County, Texas,
on the 26th day of July, 2009, under authority of Article 17.292, Code of
Criminal Procedure, by intentionally or knowingly committing family
violence against Melissa Eversole, to wit: hitting or striking or grabbing or
choking or suffocating the said Melissa Eversole, then you will find the
Defendant guilty of the offense of Violation of a Protective Order, as
charged in the indictment.

Relevant Statutes—Violation of Protective Order

Section 25.07 of the Penal Code establishes the offense of violation of protective

order in relevant part as follows:

(a) A person commits an offense if, in violation of … an order issued
under Article 17.292, Code of Criminal Procedure, … the person
knowingly or intentionally:

(1) commits family violence….

TEX. PEN. CODE ANN. § 25.07(a) (West 2011).

Family violence is defined in section 71.004 of the Texas Family Code in relevant

part as:

Morgan v. State Page 4
 an act by a member of a family or household against another member of
the family or household that is intended to result in physical harm, bodily
injury, assault, or sexual assault or that is a threat that reasonably places
the member in fear of imminent physical harm, bodily injury, assault, or
sexual assault, but not does include defensive measures to protect oneself.

TEX. FAM. CODE ANN. § 71.004(a) (West 2008).

Omitted Elements

Morgan complains that the application paragraph was required to include the

phrase “at a proceeding that the Defendant attended” after the description of the

protective order. Further, he complains that the phrase “a member of the Defendant’s

family or household” was required to be included to describe Melissa Eversole. 2 Lastly,

he complains that the phrase “and said act was intended to result in physical harm,

bodily injury, or assault” should have been placed after the manners and means of the

assault. We must determine if the elements complained of by Morgan were elements

that were required to be included in the application paragraph of the jury charge.

The Court of Criminal Appeals has stated that the hypothetically correct jury

charge for a violation of a protective order offense would state the elements of the

charged offense as follows: (1) Morgan, (2) in violation of an order issued on the 26th

day of July, 2009, by the Precinct 1, Place 2 Justice of the Peace Court of McLennan

County, Texas under Article 17.292, Code of Criminal Procedure, (3) at a proceeding

that Morgan attended, (4) knowingly or intentionally, (5) caused bodily injury to

Melissa Eversole by hitting or striking or grabbing or choking or suffocating her, and (6)

said act was intended to result in physical harm, bodily injury, or assault. See Villarreal

2In his second issue, Morgan further complains that the abstract portion of the charge was also erroneous
by not including the definition of these omitted terms. This complaint will be addressed below.
Morgan v. State Page 5
v. State, 286 S.W.3d 321, 327 (Tex. Crim. App. 2009).

“At a Proceeding the Defendant Attended”

While the specific language of section 25.07 does not require a finding that the

defendant attended the hearing on the protective order, this element in some form is

required to be included in the application paragraph of the jury charge. See Harvey v.

State, 78 S.W.3d 368, 372-73 (Tex. Crim. App. 2002). The State contends that the

inclusion of “intentionally or knowingly” immediately prior to “violate the terms of an

order … under authority of Article 17.292, Code of Criminal Procedure” satisfies this

requirement because, although there is no requirement of intent required for the

violation of the order, in order for the jury to determine that there was an intentional or

knowing violation of that order, knowledge of the protective order’s existence would be

required. See Id. The language as set forth in the jury charge was erroneous as it placed

an improper requirement of intent on Morgan and did not require a finding that

Morgan attended the hearing or otherwise had specific knowledge of the existence of

the protective order.

“A Member of the Defendant’s Family or Household” and “Said Act was Intended to Result in
Physical Harm, Bodily Injury, or Assault”

Morgan next complains that the violation of protective order charge did not

require findings that Melissa Eversole, the victim, was a member of his family or

household. Morgan further complains that the charge did not require a jury finding

that the assault “was intended to result in physical harm, bodily injury, or assault.” The

application paragraph of the jury charge included a requirement that the jury find that

Morgan “intentionally or knowingly committ[ed] family violence against Melissa

Morgan v. State Page 6
Eversole.” “Family violence” was properly defined in the abstract portion of the charge

as “an act by a member of a family or household against another member of the family

or household that is intended to result in physical harm, bodily injury, assault, or sexual

assault or that is a threat that reasonably places the member in fear of imminent

physical harm, bodily injury, assault, or sexual assault, but not does include defensive

measures to protect oneself.” However, the application paragraph did not make it clear

that the jury was required to make these findings that were not but should have been

included within the application paragraph. The charge to the jury was erroneous for

failing to include these elements in the application paragraph of the jury charge.

Omitted Definitions

Morgan complains in his second issue that the trial court’s jury charge was

erroneous because it did not include definitions of “family” and “household” in the

abstract portion of the charge as those terms have been statutorily defined and

therefore, were required to be included in the jury charge.3

These terms have been statutorily defined in the Family Code and extended to

the Penal Code in the Violation of Protective Order offense. See TEX. FAM. CODE ANN. §§

71.003 (definition of “family”), 71.005 (definition of “household”) (West 2008). “A trial

court is statutorily obligated to instruct the jury on the law applicable to the case.”

Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009); see TEX. CODE CRIM. PROC.

ANN. art. 36.14 (West 2007). That statutory obligation requires that each statutory

definition that affects the meaning of an element of the offense be communicated to the

3While “dating violence” has been included in the definition of “family violence,” there was no allegation
in the indictment or trial that the State was seeking conviction of the violation of the protective order
based on dating violence.
Morgan v. State Page 7
jury. Id. The trial court’s failure to include the definitions was erroneous.

Erroneous Instructions

Morgan complains in his third issue that the jury charge’s instructions defining

“intentionally” and “knowingly” were erroneous because they included the definition

of the result of his conduct and the nature of his conduct. The jury charge on the

violation of protective order charge included definitions of both “result-of-conduct”

and “nature-of-conduct” related to the definitions of both “intentionally” and

“knowingly.” Assault with bodily injury is a “result-of-conduct” offense, and the State

does not contend that the offense of violation of a protective order is any different. See

Landrian v. State, 268 S.W.3d 532, 540 (Tex. Crim. App. 2008). The inclusion of the

instructions relating to the nature of Morgan’s conduct in the abstract portion of the

charge was erroneous.

ASSAULT BY OCCLUSION

A separate jury charge was submitted to the jury for the assault by occlusion

offense. Morgan complains in his brief to this Court that the jury charge was erroneous

for reasons separate from the jury charge on the violation of protective order offense.

Erroneous Instructions

Morgan’s first two issues complain that the trial court erred by including the

definitions of “dating relationship” and “family violence” in the abstract portion of the

jury charge on guilt-innocence for the assault by occlusion offense which he contends

impermissibly broadened the indictment by allowing him to be convicted of an offense

that was in part never presented to the grand jury.

Morgan v. State Page 8
Relevant Statutes

Assault by Occlusion as used in this case is defined in the Penal Code as a

person who “intentionally, knowingly, or recklessly causes bodily injury to another,

including the person’s spouse,” which offense becomes a third-degree felony “(b) … if

the offense is committed against … (2) a person whose relationship to or association

with the defendant is described by Section 71.0021(b), 71.003, or 71.005, Family Code, if:

… (B) the offense is committed by intentionally, knowingly, or recklessly impeding the

normal breathing or circulation of the blood of the person or by applying pressure to

the person’s throat or neck or by blocking the person’s nose or mouth; ….” TEX. PEN.

CODE ANN. § 22.01(a)(1) & (b)(2)(B) (West 2011).

The relevant sections of the Family Code are as follows:

§ 71.003:

“Family” includes individuals related by consanguinity or affinity, as
determined under Sections 573.022 and 573.024, Government Code,
individuals who are former spouses of each other, individuals who are the
parents of the same child, without regard to marriage, and a foster child
and foster parent, without regard to whether those individuals reside
together.

§ 71.004:

“Family violence” means:

(1) an act by a member of a family or household against another member
of the family or household that is intended to result in physical harm,
bodily injury, assault, or sexual assault or that is a threat that reasonably
places the member in fear of imminent physical harm, bodily injury,
assault, or sexual assault, but does not include defensive measures to
protect oneself;

(2) abuse, as that term is defined by Sections 261.001(1)(C), (E), and (G), by
a member of a family or household toward a child of the family or
Morgan v. State Page 9
 household; or

(3) dating violence, as that term is defined by Section 71.0021.

§ 71.005:

“Household” means a unit composed of persons living together in the
same dwelling, without regard to whether they are related to each other.

§ 71.0021:

(a) “Dating violence” means an act by an individual that is against another
individual with whom that person has or has had a dating relationship
and that is intended to result in physical harm, bodily injury, assault, or
sexual assault or that is a threat that reasonably places the individual in
fear of imminent physical harm, bodily injury, assault, or sexual assault,
but does not include defensive measures to protect oneself.

(b) For purposes of this title, “dating relationship” means a relationship
between individuals who have or have had a continuing relationship of a
romantic or intimate nature. The existence of such a relationship shall be
determined based on consideration of:

(1) the length of the relationship;

(2) the nature of the relationship; and

(3) the frequency and type of interaction between the persons involved
in the relationship. . . .

TEX. FAM. CODE ANN. §§ 71.003, 71.004, 71.005, & 71.0021 (West 2008).

Application Paragraph

The application paragraph contained in the jury charge on the assault by

occlusion offense stated:

Now, if you find from the evidence beyond a reasonable doubt that on or
about the 14th day of September, 2009, in McLennan County, Texas, the
defendant, Kenneth Ray Morgan, did then and there intentionally,
knowingly, or recklessly cause bodily injury to Melissa Eversole, a
member of the Defendant’s family or household, as described by 71.005 or
71.0021(b), Family Code, by intentionally, knowingly, or recklessly
Morgan v. State Page 10
 impeding the normal breathing or circulation of the blood of the said
Melissa Eversole, by applying pressure to the throat or neck and/or
blocking the nose or mouth, of the said Melissa Eversole, then you will
find the Defendant guilty of the offense of Assault Family Violence by
Occlusion, as charged in this indictment.

Dating Relationship

Morgan complains in his first issue that the jury charge erroneously broadened

the charged offense set forth in the indictment because it allowed a conviction based on

a dating relationship, which was set forth in the indictment solely by an erroneous

attempt to reference the section in the Family Code that defines “dating relationship.”

The original indictment from the grand jury alleged in relevant part that “KENNETH

RAY MORGAN … did then and there intentionally, knowingly, or recklessly cause

bodily injury to MELISSA EVERSOLE, a member of the Defendant’s family or

household, as described by Section 71.033 or 71.005 or 71.00021(b), Family Code ….”

The indictment was amended without objection by the defense prior to trial and

abandoned the reference to Section 71.033, a section that does not exist in the Family

Code, and changed Section 71.00021(b) to 71.0021(b). Section 71.005 contains the

statutory definition of “household” and section 71.0021(b) contains the statutory

definition of “dating relationship.” Presumably the State intended the reference to

section 71.033 which was abandoned to actually refer to section 71.003, which contains

the statutory definition of “family.”

Morgan contends that the reference to section 71.0021(b) was insufficient to allow

the inclusion of “dating relationship” in the definition of “family or household.” We

disagree in part with that complaint. We note that “dating relationship” is a separate

Morgan v. State Page 11
definition from the definitions of either “family” or “household” in the Family Code.

The purpose of an indictment is to give a defendant notice of the substance of the

charges against him or her. As such, although it certainly could have been worded

more clearly and should have set forth the correct section numbers, Morgan was given

notice at trial that the State intended to rely on the definitions set forth in the family

code of “household” and “dating relationship” in the indictment. Section 22.01(b)(2)(B)

refers specifically to those sections of the Family Code by number when defining which

persons would qualify as victims for this offense. Morgan does not contend that he did

not have notice of the intent of the State to rely on a dating relationship between

Eversole and himself.

Morgan did not file a motion to quash the indictment, but now raises this

deficiency by claiming that it adds an uncharged manner and means of the offense in

the jury charge. To the degree that Morgan is complaining about a defect in the

substance or form of the indictment, this objection has been waived by the failure to

raise it in the trial court. See TEX. CODE CRIM. PROC. ANN. art. 1.14; see also Smith v. State,

309 S.W.3d 10, 18 (Tex. Crim. App. 2010). To the extent that Morgan is complaining that

the instruction regarding “dating relationship” was erroneously included in the jury

charge because it broadened the indictment, we also find that this was not erroneous

based on the language of the indictment. We overrule issue one.

Family Violence

Morgan complains that the trial court erred by including the definition of “family

violence” as set forth in Family Code section 71.004 in the jury charge because it is not a

Morgan v. State Page 12
required definition for the charged offense. Morgan contends that the inclusion of the

definition impermissibly broadened the indictment. The State contends that the

instruction was necessary because the definition of “family violence” includes “dating

violence” and that those terms are synonymous. “Dating violence” is defined in section

71.0021(a) of the Family Code but the term “dating violence” was not included in the

definition of “family violence” provided in either charge to the jury. Further, while

“dating violence” is one type of “family violence,” the terms are not entirely

synonymous because “family violence” has a broader meaning than “dating violence.”

However, even if this assertion were correct, the language of this charge would give no

indication that “dating violence” was included in the definition of “family violence” or

how it was connected to the application paragraph of the assault offense. Ultimately,

however, the definition of “dating violence” is not an element of the offense of assault

by occlusion either and was not relevant to this offense.

We agree that the definition of “family violence” should not have been included

in the jury charge for the assault by occlusion offense because neither the term “family

violence” or the term “dating violence” is an element or other necessary part of the

offense of assault by occlusion. However, we do not find that the indictment was

erroneously broadened by the inclusion of this instruction because in the charge before

the jury it had no connection to or was ever tied to the application paragraph.

Erroneous Instructions

Morgan complains that the trial court erred in its definitions in the abstract

portion of the jury charge regarding mens rea because the definitions given included an

Morgan v. State Page 13
instruction on “nature-of-conduct” in addition to “result-of-conduct.” Assault by

occlusion is a “result-of-conduct” offense. See Landrian v. State, 268 S.W.3d 532, 540

(Tex. Crim. App. 2008). The jury charge included the definition of “result-of-conduct”

with the definitions of “intentionally,” “knowingly,” and “recklessly” but also included

the definition of “nature-of-conduct” with the definition of “knowingly” only. The

State concedes that this inclusion was erroneous and we agree.

Comment on the Weight of the Evidence

Morgan complains in his fourth issue that the language of the application

paragraph “a member of the Defendant’s family or household” as it was worded

removed the requirement that the jury determine that issue and in effect, was a directed

verdict by the trial court on that issue.

Article 36.14 of the Code of Criminal Procedure requires that the trial court

deliver to the jury a “written charge distinctly 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 the facts or using any argument in his charge calculated to arouse

the sympathy or excite the passions of the jury.” TEX. CODE CRIM. PROC. ANN. art. 36.14

(West 2007). “A charge that assumes the truth of a controverted issue is a comment on

the weight of the evidence and is erroneous.” Whaley v. State, 717 S.W.2d 26, 32 (Tex.

Crim. App. 1986); see also Grady v. State, 634 S.W.2d 316, 317 (Tex. Crim. App. 1982)

(observing that “trial court in its charge to a jury should never give the jury an

instruction which constitutes a comment by the court on the elements of the alleged

offense, or assumes a disputed fact”).

Morgan v. State Page 14
 Morgan’s defense was based on alibi and identity; that being that he was in

another city on the date of the offense and therefore, the offense must have been

committed by another person who was identified as being present at the scene of the

offense around the time of the assault. Our review of the record shows that the issue of

whether or not Morgan and Eversole were residing together was not controverted.

Because of this, we are not persuaded that the charge as written “assume[d] the truth of

a controverted issue.” See Casey v. State, 215 S.W.3d 870, 877 (Tex. Crim. App. 2008)

(citing Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App. 1986). See also Munson v. State,

No. 10-09-00319-CR, 2011 Tex. App. LEXIS 6806 at *4 (Tex. App.—Waco August 24,

2011, no pet. h.). We overrule issue four of the assault by occlusion offense.4

Omitted Definitions

Morgan complains in his fifth issue that the trial court erroneously omitted a

definition of “family” in the jury charge on the assault by occlusion offense. The State

contends that the trial court was not required to include the definition of “family”

because it had abandoned the statutory reference to “family” by deleting “71.033” from

the indictment. While we can assume that the State was referring to the definition of

“family” as set forth in section 71.003 of the Family Code, and that section was indeed

marked out on the indictment, the term “a member of Defendant’s family or

household” immediately preceding the statutory references was not deleted and was

submitted to the jury in the charge.

“A trial court is statutorily obligated to instruct the jury on the law applicable to

4This is not to say that the application paragraph should have been phrased as it was. It is preferable for
the jury to be charged in such a way that they must find each element necessary for guilt and thus avoid
an argument on appeal.
Morgan v. State Page 15
the case.” Villarreal v. State, 286 S.W.3d 321, 329 (Tex. Crim. App. 2009); see TEX. CODE

CRIM. PROC. ANN. art. 36.14 (West 2007). That statutory obligation requires that each

statutory definition that affects the meaning of an element of the offense be

communicated to the jury. Id. Because there was a reference to Eversole being a

member of Morgan’s “family” in the application paragraph of the assault by occlusion

offense, the trial court erred by failing to include the statutory definition of “family” in

the jury charge.

HARM ANALYSIS

Having found multiple errors in each of the jury charges, we must next

determine whether these errors constituted egregious harm. The actual degree of harm

of these errors must be evaluated in light of: (1) the entire jury charge; (2) the state of the

evidence, including the contested issues and the weight of the probative evidence; (3)

the final arguments of the parties; and (4) any other relevant information revealed by

the trial record as a whole. Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008). In

regard to the fourth factor, we must consider, on this record, the submission of the two

separate jury charges each with various errors contained therein.

Violation of Protective Order

Having found errors in the charge relating to the violation of the protective order

as discussed above, we must determine if Morgan was egregiously harmed by those

errors.

The Entire Jury Charge

As discussed in detail above, the jury charge as submitted on the violation of

Morgan v. State Page 16
protective order offense was flawed in multiple respects. Three elements of the offense

were not included in the application paragraph. Statutorily defined terms of

“household” and “family” were not included. The inapplicable mens rea relating to

“nature-of-conduct” was included.

Missing Elements

Relating to the element of Morgan’s presence at the hearing on the violation of

the protective order, the State’s burden to establish that Morgan had some knowledge

of the order was, if anything, increased by the requirement that the violation of the

protective order itself was intentional or knowing.

Relating to the element of Eversole being “a member of the Defendant’s family or

household,” the definition of “family violence” set forth in the abstract portion of the

charge included those terms, although their statutory definitions were also improperly

omitted.

Relating to the element of whether the assault was “intended to result in physical

harm, bodily injury, assault, or sexual assault” being omitted from the application

paragraph, we find that although there was a definition of “family violence” included

in the charge, it did not require a finding solely that the assault was “intended to result

in physical harm, bodily injury, assault, or sexual assault” but also added “or that is a

threat that reasonably places the member in fear of imminent physical harm, bodily

injury, assault, or sexual assault, but not does include defensive measures to protect

oneself,” which would potentially allow the jury to consider an additional definition

that was not relevant to the offense as alleged in the indictment and could result in a

Morgan v. State Page 17
conviction without the requisite intent.

Omitted Definitions

The definitions of “family” and “household” were not included in the abstract

portion of the charge. However, the omission of the definition of “family” was not

particularly harmful as there was no evidence of a familial relationship. The Family

Code’s definition of “household” is not significantly different from its commonly

known definition. When a statutory term is not defined in the jury charge, we are to

assume that the jury considered the commonly understood meaning of the term in its

deliberations. See Olveda v. State, 650 S.W.2d 408, 409 (Tex. Crim. App. 1983). In

Merriam-Webster’s Collegiate Dictionary, “household” is defined as (1) those who dwell

under the same roof and compose a family; also (2) a social unit composed of those

living together in the same dwelling. Merriam-Webster’s Collegiate Dictionary 561 (10th

ed. 2000). We see no meaningful distinction between the two definitions. Additionally,

the Family Code’s definition of “household” was included in the assault by occlusion

jury charge.

However, we note that “dating violence,” which was an allegation included in

the assault by occlusion offense, was not part of the indictment in the violation of

protective order offense. When reviewing the two charges submitted jointly to the jury,

the distinct allegations allowed in the definition of “family violence” which was

presented in both jury charges also enhances the confusing language of the charges.

Erroneous Instructions

The mens rea instruction in the jury charge improperly included the definitions of

Morgan v. State Page 18
“nature-of-conduct” which could have been largely minimized had the charge properly

included the element of “intended to result in physical harm, bodily injury, assault, or

sexual assault” in the application paragraph because then a finding would have been

required relating to the result of Morgan’s conduct. This failure enhances the error of

including the surplus definition.

Conclusion on Review of Charge Factors

The multiple errors in the charge, especially the omitted elements, significantly

increased the harm to Morgan.

The State of the Evidence

The state of the evidence, including the contested issues and the weight of the

probative evidence, demonstrates that the protective order was issued by authority of

the Code of Criminal Procedure, which requires the presence of the defendant, and the

order indicates that Morgan was present. See TEX. CODE CRIM. PROC. ANN. art. 17.292(j)

(West Supp. 2010). Further, there is an acknowledgement of receipt of the order signed

by Morgan and witnessed by a deputy. There was no evidence presented that Morgan

was unaware of the existence of the protective order.

The evidence was uncontroverted that Eversole was assaulted and suffered

bodily injury as a result. Morgan’s defense was that he was working out of town on the

day of the offense. Eversole and a neighbor who lived two houses down from Eversole

and Morgan but was at her mother-in-law’s house next door to Eversole and Morgan’s

house each testified that Morgan was residing with Eversole at the time of the offense

and had been for a period of approximately six to eight weeks. Eversole identified

Morgan v. State Page 19
Morgan as the person who had assaulted her and the neighbor observed Morgan

outside of the residence of Eversole and Morgan shortly after Eversole had come next

door to the mother-in-law’s home for help after the assault. The neighbor’s husband

had been a friend of Morgan since high school and the neighbor had known him since

she was seventeen. The neighbor testified that she saw Morgan leave the scene with

several other men in a pickup truck shortly after the assault.

There was no evidence of a familial relationship between Eversole and Morgan.

The only evidence of the lack of Eversole and Morgan constituting a household was one

comment by the defense’s witness that Morgan had resided in Lufkin prior to the

offense but had been “back and forth.” However, that witness provided no work

records or other documentation of Morgan’s employment even though he contended

that they did exist and he had been subpoenaed to bring them with him to court.

The contested issue in the violation of protective order offense was whether or

not Morgan was there the day of the offense or if someone else who was seen at the

residence actually assaulted Eversole. The jury, as the sole fact-finder and determiner

of the credibility of the witnesses, chose to believe Eversole and the neighbor and to

disbelieve Morgan’s witness. The evidence of Morgan’s guilt was strong and reduces

the harm from the erroneous jury charge.

Final Arguments of the Parties

Morgan did not argue that he did not know of the existence of the protective

order or that Eversole was a member of his family or household. Rather, the focus of

the argument was on the inconsistencies found in the testimony and on whether

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another individual committed the offense because Morgan was working in Lufkin.

In its closing argument, the State defined the offense of violation of protective

order as “…the Defendant on or about a certain date in our county intentionally or

knowingly committed family violence in violation of that order,” which does not set

forth each of the required elements. There was nothing further in either argument that

increased the harm from the errors as shown above.

Other Evidence from the Record as a Whole

During voir dire, the State made references to a dating relationship being

relevant to the violation of protective order offense, which it was not according to the

indictment. The jury charge from the assault by occlusion charge contained definitions

that, while applicable to the violation of protective order charge, were not included in

the violation of protective order charge. The underlying assault alleged in the violation

of protective order offense was not entirely related to the assault by occlusion, but also

allowed findings of hitting, striking, or grabbing in addition to choking or suffocating.

The assault by occlusion jury charge contained multiple errors as well, which increases

the harm suffered by Morgan.

CONCLUSION ON VIOLATION OF PROTECTIVE ORDER

While we recognize the strength of the evidence against Morgan, we cannot

overlook the multiple errors in the jury charge including those which allowed the jury

to convict Morgan without making findings as to required elements of the offense. We

find that Morgan was egregiously harmed by the errors in the jury charge relating to

the violation of protective order offense. We sustain issues one, two, and three.

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 Assault by Occlusion

Having found that the jury charge relating to the assault by occlusion offense

was erroneous because it included an unnecessary instruction relating to “family

violence,” set forth an improper “nature-of-conduct” mens rea relating to “knowingly,”

and omitted the definition of the term “family,” we must next determine whether

Morgan was egregiously harmed by the errors.

The Entire Jury Charge

We must determine whether the jury charge as a whole increased or decreased

the harm suffered by Morgan. One significant error in the jury charge on the assault by

occlusion offense is that the section numbers from the Family Code set forth in the

charge were never connected to the appropriate definitions in the abstract portion of the

jury charge. The definitions of “household” and “dating relationship” were included in

the abstract portion of the jury charge but the section numbers referenced in the

application paragraph were never connected to those definitions or otherwise explained

in the charge.

Inclusion of Definition of “Family Violence”

The application paragraph in the charge for this offense erroneously referred to

the offense as “Assault Family Violence by Occlusion,” which is not the proper name

for the offense and could also potentially allow the consideration of the threat portion of

the definition as part of the offense. See TEX. FAM. CODE ANN. § 71.004 (definition of

family violence). However, the jury had properly received this definition in the jury

charge for the violation of a protective order, for which the definition was relevant in

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part, but still not relevant as it defines family violence as constituting a threat of

violence.

Improper Mens rea

The improper mens rea relating to the nature of Morgan’s conduct was only

provided in relation to the intent of “knowingly” but was erroneous. In the application

paragraph, the State had attempted to abandon the allegation of “family” by striking

the erroneous section number that had been alleged, but the State did not remove it

from the term “a member of the Defendant’s family or household,” which was then

limited to sections 71.005 and 71.0021(b), neither of which define “family.” Section

71.0021(b) does not define either “family” or “household” but is the separate definition

of “dating relationship.”

Omission of Definition of “Family”

Because the State did not fully abandon the allegation of Eversole being a

member of Morgan’s family, the failure to include the definition was erroneous.

However, because there was no evidence of a familial relationship between them, this

failure does not increase the harm suffered by Morgan. We overrule issue five.

However, the other errors in the jury charge for the assault by occlusion offense

did increase the harm suffered by Morgan.

State of the Evidence

The assault by occlusion was the lesser-mentioned offense throughout the trial.

Eversole testified that during the altercation between herself and Morgan, Morgan

impeded her ability to breathe by holding his hand over her nose and mouth.

Morgan v. State Page 23
Photographs were introduced into evidence which showed that Eversole had sustained

a cut on the inside of her mouth which was consistent with Eversole’s account. There

was no evidence presented that this did not in fact occur. The evidence of the assault by

occlusion against Eversole, who was a member of Morgan’s household, was strong and

reduced the harm suffered by Morgan.

Arguments of the Parties

In his closing argument, Morgan contended that the evidence was not sufficient

to establish beyond a reasonable doubt that Eversole’s normal breathing or circulation

of blood was impeded during the altercation. Morgan did not deny that some type of

assault had occurred but that he was not there that day but someone else was. There

was no argument by either the State or Morgan relating to the relationship between

Morgan and Eversole as not being a household or dating relationship. The arguments

of the parties did not describe the intent required or the erroneous “nature-of-conduct”

definition. The arguments did not increase the harm suffered by Morgan.

Other Evidence from the Record as a Whole

In voir dire, the State referenced a dating relationship as being one of the ways

that Morgan could have committed the offense of the assault by occlusion at least twice.

There was no other evidence in the record from voir dire, the evidence, or the rest of the

record as a whole beyond the inconsistencies and errors in each of the jury charges that

caused harm to Morgan.

CONCLUSION ON ASSAULT BY OCCLUSION

Ultimately, although the evidence against Morgan was strong, we find that the

Morgan v. State Page 24
multiple errors contained both in the application paragraph and the abstract portion of

the charge caused egregious harm to Morgan because it allowed the jury to consider the

irrelevant definition of “family violence” and a dating relationship which was never

properly connected between the definitions in the abstract portion and the application

paragraph. We sustain issues two and three.

CONCLUSION

Because we have found that the jury charges for each offense were erroneous and

those errors caused egregious harm, we reverse the judgments of conviction and

remand for a new trial on both offenses or as may be charged in the indictments as

amended.

TOM GRAY
Chief Justice

Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
Reversed and Remanded
Opinion delivered and filed October 12, 2011
Do not publish
[CR25]

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