Danny Wayne Alcoser v. State

In The
Court of Appeals
Seventh District of Texas at Amarillo
________________________

No. 07-18-00032-CR
________________________

DANNY WAYNE ALCOSER, APPELLANT

V.

THE STATE OF TEXAS, APPELLEE

On Appeal from the 19th District Court
McLennan County, Texas
Trial Court No. 2016-1261-C1 (Counts I, II & III); Honorable Ralph T. Strother, Presiding

December 20, 2019

OPINION
Before QUINN, C.J., and PIRTLE and PARKER, JJ.

Appellant, Danny Wayne Alcoser, appeals three convictions related to a domestic

violence incident.1 Following pleas of not guilty to all three counts of the indictment and

1 Originally appealed to the Tenth Court of Appeals, this appeal was transferred to this court by the
Texas Supreme Court pursuant to its docket equalization efforts. TEX. GOV’T CODE ANN. § 73.001 (West
2013). Should a conflict exist between precedent of the Tenth Court of Appeals and this court on any
relevant issue, this appeal will be decided in accordance with the precedent of the transferor court . TEX.
R. APP. P. 41.3.
a plea of true to an enhancement allegation, a jury convicted him on all counts and

assessed punishment as follows:

Count I Assault Family TEX. PENAL CODE ANN. §§ Twenty years and a fine
Violence, a third degree felony 22.01(b)(2), 12.42(a) (WEST of $10,000
enhanced to a second degree 2019)
felony

Count II Endangering a Child, a state TEX. PENAL CODE ANN. § Two years and a fine of
jail felony 22.041(c), (f) (West 2019) $10,000

Count III Interference with Emergency TEX. PENAL CODE ANN. § One year in county jail
Request for Assistance, a 42.062(a) (West 2017) and a fine of $4,000
Class A misdemeanor

Appellant’s sentences were ordered to run concurrently. By four issues, he challenges

all three of his convictions. By his first issue, he contends the trial court abused its

discretion in denying a mistrial. By issues two and three, he argues he was egregiously

harmed when the trial court failed to properly instruct the jury regarding the applicable

culpable mental states and when it failed to properly instruct the jury on the law relating

to self-defense by not including an application paragraph and by omitting the definition of

“reasonable belief.” By his fourth and final issue, he maintains the evidence is factually

insufficient to support his conviction. For the reasons that follow, we reverse and remand

each conviction.

BACKGROUND

Appellant and the complainant met when she was assigned as his daughter’s Child

Protective Services caseworker. When that case was closed, the complainant and

Appellant began an on-again, off-again romantic relationship.

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 The complainant has two children, T.W. and J.A., the younger being Appellant’s

biological child. T.W., a special needs child, was six years old at the time of the incident

resulting in Appellant’s convictions and J.A., Appellant’s child, was less than a year old.

In May 2016, the complainant and Appellant were having relationship issues and were

attending court-ordered counseling. The court order required them to live separately.

During that period of separation, Appellant was staying with a former girlfriend.

On the day in question, the complainant was taking a shower and her two children

were in the home. Appellant claimed he believed no one was home and used his key to

enter and gather his clothes from the master bedroom closet. The complainant heard

someone and exited the shower. When she realized Appellant was removing his clothes

from the closet, she tried to persuade him to stay and they engaged in a physical

altercation. According to Appellant’s version of the events, he thought no one was home

and was suddenly struck on the back of the head causing him to instinctively grab the

person assaulting him without realizing it was the complainant.

Claiming he was defending himself from the complainant, Appellant placed one of

his hands over her esophagus, causing her breathing to be impeded. With a firm hold

around her neck, he guided her backwards from the closet through the master bedroom

and toward the master bathroom.

The complainant testified that she fought back and was able to free herself from

Appellant’s grasp. She ran to the living room as Appellant gathered his belongings and

left. She then locked the door behind him. When Appellant realized he had left his

cigarettes inside, he asked to re-enter the home. The complainant instructed him to

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remain outside while she brought him his cigarettes. Instead, he entered the living room

and the fighting resumed.

T.W. tried to separate them and was pushed away by Appellant. At that time, the

complainant held up her cell phone and threatened to call the police. Appellant

responded with a threat and grabbed her phone and damaged it. The complainant then

instructed T.W. to run out of the house and he complied. She grabbed her infant and

tried to leave through the back door; however, according to the complainant, Appellant

followed her with a baseball bat. She testified that he threatened to kill her. She turned

and ran toward the front door but veered off toward the master bathroom to try to exit

through a window. She was unable to completely close the bathroom door when

Appellant pushed it open, causing her to fall into the bathtub while still holding her infant.

The complainant hit her head but managed to shield the infant from any injury. Appellant

left the premises and the complainant went to a neighbor’s house where she asked them

to call 911 because her cell phone was inoperable.

Sergeant John Tucker responded to an assault-in-progress call at the

complainant’s home. He testified he was familiar with the address due to prior encounters

with the parties. When he arrived, the complainant gave the officer her version of the

incident. Sergeant Tucker decided not to interview T.W. in order to avoid any further

trauma to the child. At trial, Sergeant Tucker testified that the complainant was visibly

upset, and photographs taken at the scene showed red marks around her neck.

Appellant was arrested a few weeks later. While he was in jail, the complainant

visited him, and they also corresponded. Eventually, the complainant signed an affidavit

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of non-prosecution seeking dismissal of the charges against Appellant. She testified she

still loved Appellant and did not want him prosecuted. Nevertheless, the case proceeded

to trial.

After the State presented its case-in-chief, Appellant chose not to testify. However,

after both sides had rested and closed, he changed his mind. The trial court re-opened

the evidence and admonished Appellant of the consequences of testifying. Against

counsel’s advice, Appellant testified he was defending himself against the complainant

who initially assaulted him by surprise while he was gathering his clothes. According to

Appellant, “[n]obody was supposed to be there.” “I started getting hit in the back of the

head.” He explained that his physical reaction toward the complainant was “a response

to - - to being hit.” He also testified that the complainant damaged her own cell phone

and fabricated her version of the events to avoid losing custody of her children because

she was under investigation by Child Protective Services. He also sought admission into

evidence of recorded phone calls which he claimed would reveal the truth.2

During his testimony, Appellant admitted having a drug and alcohol problem in the

past. He also testified that he suffers from anxiety and cannot always afford his

medication. He admitted relinquishing his parental rights to other children so that the

complainant would not lose custody of her two children.

Essentially, Appellant’s self-defense theory portrayed the complainant as the

provocateur. He insisted that she fabricated the story about falling in the bathtub. He

2 Jail phone calls became an issue during trial but are not relevant to disposition of the issues before
us.

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denied using a baseball bat to intimidate her during the altercation and testified he never

threatened to kill her. In his opinion, the complainant’s machinations benefitted her with

Child Protective Services because, if it was believed she was the instigator, she risked

losing custody of her children.

After testimony in the guilt or innocence phase of trial concluded, the court held a

charge conference. The charge included three counts—one for each offense—and a

paragraph on self-defense. It also included definitions of various culpable mental states

and other standard instructions. When the trial court asked for objections to the charge,

counsel for Appellant stated, “[n]o objections or requests.” After closing arguments, the

jury deliberated and then returned guilty verdicts on all three counts.

We will address Appellant’s issues in a logical rather than sequential order. First,

we begin with issues two and three by which he raises various errors relating to the jury

charge. Specifically, by issue two, he maintains the trial court erred in failing to properly

define the culpable mental states applicable to each separate offense and by failing to

properly tailor them to the offenses with which he was charged. By his third issue,

Appellant contends the trial court erred in omitting an application paragraph as well as

the definition of “reasonable belief” in the instruction on self-defense. Appellant maintains

the cumulative effect of the numerous errors caused him egregious harm. We agree.

APPLICABLE LAW—CHARGE ERROR

Article 36.14 of the Texas Code of Criminal Procedure mandates that the trial court

“shall deliver to the jury . . . a written charge distinctly setting forth the law applicable to

the case . . . .” TEX. CODE CRIM. PROC. ANN. art. 36.14 (West 2007). (Emphasis added).

6
“The purpose of the jury charge is to inform the jury of the applicable law and guide them

in its application to the case.” Beltran De La Torre v. State, 583 S.W.3d 613, 617 (Tex.

Crim. App. 2019) (quoting Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)).

Therefore, a proper charge consists of an abstract statement of the law applicable to the

case and such application paragraph or paragraphs as are necessary to apply that law to

the facts. Ramirez v. State, 336 S.W.3d 846, 851 (Tex. App.—Amarillo 2011, pet. ref’d).

The abstract paragraph of a jury charge serves as a guide or glossary to help the jury

understand the meaning of concepts and terms used in the application paragraph of the

charge. Arteaga v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017). The failure to

give an abstract instruction is reversible error when such an instruction is necessary to

correct or complete the jury’s understanding of concepts or terms in the application part

of the charge. Malik v. State, 953 S.W.2d 234, 235 (Tex. Crim. App. 1997).

In its charge to the jury, “[a] trial judge must maintain neutrality in providing such

information and guidance.” Beltran De La Torre, 583 S.W.2d at 617 (citing Brown v.

State, 122 S.W.2d 794, 798 (Tex. Crim. App. 2003)). The jury charge should avoid any

special allusion to a particular fact in evidence, “as the jury might construe this as judicial

endorsement or imprimatur.” Id. Furthermore, an instruction is improper if it

“impermissibly guide[s]” a jury’s consideration of the evidence or “improperly focuses the

jury” on certain evidence because such an instruction would amount to an impermissible

comment on the weight of the evidence. Brown, 122 S.W.2d at 802. To accomplish these

purposes, article 36.14 provides that a jury charge: (1) must be in writing; (2) must

“distinctly set[] forth the law applicable to the case”; (3) cannot “express[] any opinion as

to the weight of the evidence”; (4) may “not sum[] up the testimony”; and (5) cannot

7
“discuss[] the facts or us[e] any argument in [the] charge calculated to arouse the

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

Appellate review of claimed jury-charge error involves a two-step process. See

Cortez v. State, 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). See also Almanza v. State,

686 S.W.2d 157, 171 (Tex. Crim. App. 1985). A reviewing court must initially determine

whether charge error occurred. Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App.

2015). If an appellate court finds charge error, the next step requires the reviewing court

to analyze that error for harm. Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App.

2012).

Charge error requires reversal when a proper objection has been made and a

reviewing court finds “some harm,” i.e., error that is calculated to injure the rights of the

defendant. Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009). Where, as

here, the alleged error was not preserved by objection, Appellant can prevail only if he

was egregiously harmed by an erroneous charge. Arteaga, 521 S.W.3d at 338. Jury

charge error is egregious if it affects the very basis of the case, deprives the defendant of

a valuable right, or vitally affects a defensive theory. Id. Egregious harm is a “high and

difficult standard which must be borne out by the trial record.” Reeves v. State, 420

S.W.3d 812, 816 (Tex. Crim. App. 2013).

When reviewing harm resulting from charge error, an appellate court must

determine harm in light of (1) the jury instructions, (2) the state of the evidence, (3) the

arguments of counsel, and (4) any other relevant information revealed by the record of

the trial as a whole. See Anaya v. State, 381 S.W.3d 660, 665 (Tex. App.—Amarillo 2012,

8
pet. ref’d) (citing Almanza, 686 S.W.2d at 174). Also, there is no burden of proof or

persuasion in a harm analysis conducted under Almanza. See Anaya, 381 S.W.3d at

665.

CHARGE ERROR ANALYSIS

ASSAULT—FAMILY VIOLENCE

By a “superceding” [sic] indictment, Appellant was charged with “intentionally,

knowingly, and recklessly” causing bodily injury to the complainant, a member of his

family or of his household as described by section 71.003 or 71.005 of the Texas Family

Code, by choking or strangling her.3 See TEX. PENAL CODE ANN. § 22.01(a)(1). An offense

under this subsection of the Penal Code is a Class A misdemeanor, except that the

offense is a felony of the third degree if the offense is committed against a person whose

relationship to or association with the defendant is one described by section 71.0021(b),

71.003, or 71.005 of the Texas Family Code, if it is shown on the trial of the offense that

the defendant has previously been convicted of an offense under chapter 22 of the Penal

Code against a person whose relationship to or association with the defendant is one

described by section 71.0021(b), 71.003, or 71.005 of the Texas Family Code. Id. at §

22.01(b)(2)(A). Here, the State pleaded the necessary elements to raise the offense to a

third degree felony. In addition, the State alleged a prior felony conviction for purposes

of enhancement, raising the range of punishment to that of a second degree felony. 4 Id.

at § 12.42(a). The prior offense alleged was Cause Number W-05-CR-086(01), from the

3 Although the conjunction “and” is used in the indictment to separate the culpable mental states,

the charge presents the culpable mental states disjunctively.
4 An offense “punished as” a higher offense raises the level of punishment, not the degree of the
offense. Oliva v. State, 548 S.W.3d 518, 526-27 (Tex. Crim. App. 2018).

9
[United States District Court] for Western District of Texas, Waco Division, for the offense

of Possession with Intent to Distribute Methamphetamine.

CHILD ENDANGERMENT

Appellant was also charged with “intentionally, knowingly, recklessly, or with

criminal negligence,” engaging in conduct that placed J.A., a child younger than fifteen

years of age, in imminent danger of death, bodily injury, or physical or mental impairment,

by pushing the child’s mother into or against the bathtub while holding her infant. See

TEX. PENAL CODE ANN. § 22.041(c). Here, the State unnecessarily included in the

indictment allegations negating the provisions of section 22.041(h) providing an exception

to a charge of child endangerment by abandonment.5

INTERFERENCE WITH AN EMERGENCY REQUEST FOR ASSISTANCE

Appellant was also charged with “knowingly” preventing or interfering with the

ability of the complainant to place an emergency telephone call to a law enforcement

agency. See TEX. PENAL CODE ANN. § 42.062(a). “Knowingly” is the only culpable mental

state applicable to this offense. See generally Schumm v. State, 481 S.W.3d 398, 399-

400 (Tex. App.—Fort Worth 2015, no pet.) (setting forth the elements of the offense).

SELF-DEFENSE

Self-defense is the use of force against another when and to the degree the actor

reasonably believes the force is immediately necessary to protect the actor against the

5 The amended indictment added an allegation that Appellant did not voluntarily deliver the child to

a designated emergency infant care facility as provided under section 262.302 of the Texas Family Code—
an inapplicable exception to the operation of section 22.041 in cases of child abandonment. No evidence
was offered with respect to this allegation.

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other’s use or attempted use of unlawful force. TEX. PENAL CODE ANN. § 9.31(a) (West

2019). Entitlement to a self-defense instruction requires the defendant to admit the act

alleged, including the culpable mental state, and produce evidence supporting the

defense. Juarez v. State, 308 S.W.3d 398, 399 (Tex. Crim. App. 2010). The statute

provides a presumption that the actor’s belief that force was immediately necessary is

reasonable under certain circumstances not applicable here. See generally TEX. PENAL

CODE ANN. § 9.31(a).

CULPABLE MENTAL STATES

Section 6.03 of the Texas Penal Code sets forth and defines four different culpable

mental states: “intentionally,” “knowingly,” “recklessly,” and “criminally negligent.” TEX.

PENAL CODE ANN. § 6.03 (West 2011). The language in a jury charge must be tailored so

that the definition of the culpable mental state is applicable to the conduct elements of the

particular offense and the failure to do so is error. Price, 457 S.W.3d at 441.

Respecting culpable mental states, courts distinguish offenses into three different

categories based on the offense-defining statute’s gravamen or focus: (1) “result-of-

conduct” offenses, (2) “nature-of-conduct” offenses, and (3) “circumstances-of-conduct”

offenses. Robinson v. State, 466 S.W.3d 166, 170 (Tex. Crim. App. 2015) (quoting Young

v. State, 341 S.W.3d 417, 423 (Tex. Crim. App. 2011)). Result-of-conduct offenses

concern the result or product of the complained-of conduct. Robinson, 466 S.W.3d at

170 (e.g., the conduct causes the death, or it caused bodily injury). Nature-of-conduct

offenses are defined by the act or conduct that is prohibited regardless of any result that

might occur. Id. (e.g., engaging in conduct that places a child younger than fifteen years

of age in imminent danger of death, bodily injury, or physical or mental impairment).

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Finally, circumstances-of-conduct offenses prohibit otherwise innocent behavior that

becomes criminal only under specific circumstances. Id. (e.g., failure to register as a sex

offender because the failure to register is criminalized only if you have a duty to register).

A trial court errs by failing to limit the definitions of the culpable mental states to

the conduct element or elements of the offense to which they apply. Price, 457 S.W.3d

at 441 (citing Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994)). Accordingly,

when trying multiple offenses in the same criminal proceeding, a trial court must carefully

distinguish the culpable mental states applicable to each offense—because the failure to

do so is error.

As to the offenses at issue in this case, assault is a “result-of-conduct” or “result-

oriented” offense because what is criminalized is conduct that causes a particular result,

to-wit: bodily injury. Landrian v. State, 268 S.W.3d 532, 536 (Tex. Crim. App. 2008). That

is to say, the gravamen of an assault offense is conduct that results in, or causes, bodily

injury. Id. at 533. Similarly, domestic violence, or assault family violence, as charged in

this case, is a result-of-conduct offense. Price, 457 S.W.3d at 439.

By way of contrast, child endangerment is a “nature-of-conduct” offense because

it is the nature of the conduct which is prohibited, regardless of the result. The gravamen

of a child endangerment offense is engaging in conduct that endangers a child—

regardless of whether the child is actually harmed or the conduct is actually prohibited.

See Walker v. State, 95 S.W.3d 516, 520-21 (Tex. App.—Fort Worth 2002, pet. ref’d)

(concluding that child endangerment is not a result-oriented offense). But see Millslagle

v. State, 81 S.W.3d 895, 897 n.1 (Tex. App.—Austin 2002, pet. ref’d) (concluding child

12
endangerment is a result-of-conduct offense); Suarez v. State, No. 05-03-00096-CR,

2003 Tex. App. LEXIS 10799, at *8-10 (Tex. App.—Dallas Dec. 30, 2003, pet. ref’d)

(mem. op., not designated for publication) (finding that failure to properly secure a child

in a vehicle was a result-of-conduct offense).6

The only culpable mental state for the offense of interference with an emergency

request for assistance is “knowingly.” TEX. PENAL CODE ANN. § 42.062(a) (providing that

an individual commits the offense “if the individual knowingly prevents or interferes with

another individual’s ability to place an emergency call or to request assistance . . . .”)

(emphasis added). Therefore, the offense of interference with emergency request for

assistance is a “circumstances-of-conduct” offense because it is not the interference with

just any call that is prohibited, it is the circumstance of the call being to an emergency

assistance provider that makes the conduct fall within the purview of that statute.

JURY INSTRUCTIONS

As stated above, a jury charge should begin with an abstract paragraph defining

the elements of an offense, or defining significant words or phrases, followed by an

application paragraph that applies that law to the facts of the particular case. Here, the

jury charge did not follow that customary pattern. Although the introductory paragraph

identifies the three separate offenses being tried together—“assault family violence,”

“endangering a child,” and “interference with 911 call”—it initially only defines the

elements of the assault—family violence offense. The paragraph defining the elements

6 In this court’s opinion, the problem with most cases finding child endangerment to be a “result-of-

conduct” offense is their failure to distinguish between the mens rea for the criminal act or omission and the
consequences of that act or omission. For example, in Suarez, the criminal act is the failure to properly
secure a child in a vehicle; whereas, the consequence of that failure to act is the risk that the child will be
endangered.

13
of that offense is then followed by three separate paragraphs defining the culpable mental

states of intentionally, knowingly, and recklessly.

At no point does the court’s charge set forth the abstract elements defining the

offenses of child endangerment or interference with emergency request for assistance,

nor does it make any distinction between the various possible definitions of the culpable

mental state applicable to each offense.

Section 6.03(a) of the Penal Code defines “intentionally” as follows:

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

Here, the court’s charge defines “intentionally” as “[a] person acts intentionally, or

with intent, with respect to a result of his conduct when it is his conscious objective or

desire to cause the result.” Any references to the nature of conduct or engaging in

conduct were omitted. Therefore, the definition provided was properly tailored to a result-

of-conduct offense. As such, the definition was correct as to the offense of assault—

family violence, but incorrect as to the offense of child endangerment. An incorrect

definition of a culpable mental state is error.

Section 6.03(b) of the Penal Code defines “knowingly” as follows:

[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.

Here, the court’s charge erroneously conflates the two definitions statutorily

provided into a new, totally improper, definition as follows: “[a] person acts knowingly, or

14
with knowledge, with respect to the nature of his conduct or to circumstances surrounding

his conduct when he is aware that his conduct is reasonably certain to cause the result.”7

As such, the court’s definition of “knowingly” was incorrect as to all three offenses:

assault—family violence, child endangerment, and interference with a request for

emergency assistance. Again, an incorrect definition of a culpable mental state is error.

Section 6.03(c) of the Penal Code defines “recklessly” as follows:

[a] person acts recklessly, or is reckless, with respect to the circumstances
surrounding his conduct or the result of his conduct when he is aware of but
consciously disregards a substantial and unjustifiable risk that the
circumstances exist or 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 the
circumstances as viewed from the actor’s standpoint.

Here, the court’s charge limited the definition of recklessly to a result-of-conduct

offense by instructing the jury that, “[a] person acts recklessly when he 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 the

circumstances as viewed from the actor's standpoint.” As such, the definition was proper

as to the assault—family violence offense but incorrect as to the child endangerment

offense. Again—error.

Following some general instructions regarding the presumption of innocence and

the burden of proof, the charge continues with three separate application paragraphs

7 For purposes of a result-of-conduct offense, the statutory definition of knowingly should be limited
to the following: “[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.”

15
outlining the elements of each offense as contained in the indictment. The first application

paragraph outlined the elements of the assault—family violence offense, followed by an

instruction to find the seventh element (a prior conviction for assault—family violence) to

be “established” based on Appellant’s stipulation.8

Next, the court’s charge contains an outline application paragraph concerning the

child endangerment offense followed by an instruction providing the full statutory

definition of “criminal negligence.” Nowhere is there an abstract paragraph defining the

elements of child endangerment. The failure to include an abstract definition of an offense

is error. Malik, 953 S.W.2d at 235.

Section 6.03(d) of the Penal Code defines “criminal negligence” as follows:

[a] person acts with criminal negligence, or is criminally negligent, with
respect to circumstances surrounding his conduct or the result of his
conduct when he ought to be aware of a substantial and unjustifiable risk
that the circumstances exist or the result will occur. The risk must be of
such a nature and degree that the failure to perceive it constitutes a gross
deviation from the standard of care that an ordinary person would exercise
under all the circumstances as viewed from the actor’s standpoint.

The gravamen of child endangerment is engaging in conduct and as such, the

offense is generally a nature-of-conduct offense. See Walker, 95 S.W.3d at 520-21. As

a “nature-of-conduct” offense, we look to the elements of the offense to determine if the

definition is overly broad. Given that the focus of the offense is the risk created by the

actor’s conduct under the circumstances that existed rather than the result that occurred,

8 During the trial on the merits, Appellant stipulated in writing that he had previously been convicted

of assaulting a member of his family or household, in Hill County, Texas, in Cause Number M0693-13, on
May 20, 2014, and that conviction became final prior to the date of the offense for which he was on trial.
That written stipulation was introduced into evidence.

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we find that the definition provided was overly broad. An overly broad definition of an

applicable culpable mental state is error. Malik, 953 S.W.2d at 235.

Furthermore, the court’s charge conflates two separate elements—conduct and

result. While the offense of child endangerment requires that the jury find the accused

engaged in certain conduct with the requisite criminal intent, it also requires that the jury

find the conduct in question placed the child victim in imminent danger of death, bodily

injury, or physical or mental impairment. In the court’s charge, by combining the two

elements, the outline application paragraph automatically presumes that the conduct

charged, “pushing the child’s mother into or against the bathtub while the child’s mother

was holding the child,” places the child “in imminent danger of death, bodily injury, or

physical or mental impairment.” Nowhere is the jury asked to independently decide

whether the conduct charged actually subjects the child to that risk. As such, the

elements of the offense, as outlined, constitute an impermissible comment on the weight

of the evidence by presuming an essential element of the offense. A court’s charge that

impermissibly comments on the evidence is error. Beltran De La Torre, 583 S.W.2d at

617-18.

Following the definition of criminal negligence, the court’s charge contains an

outline application paragraph concerning the interference-with-an-emergency-request-

for-assistance offense followed by instructions applicable to the affirmative defense of

self-defense. Nowhere in the court’s charge does there appear an abstract paragraph

stating the statutory elements of the offense of interference-with-an-emergency-request-

for assistance. Again, the failure to include an abstract definition of an offense is error.

Malik, 953 S.W.2d at 235.

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 In the first paragraph concerning the law applicable to the affirmative defense of

self-defense, the charge of the court further provides, “[i]f you all agree the State has

proved, beyond a reasonable doubt, each of the elements listed above, you must next

consider whether the defendant’s use of force was made in self-defense.” (Emphasis

added). This sentence arguably limits the application of self-defense to the offense of

interference with an emergency request for assistance because it appears on a separate

page of the court’s charge, immediately following the application paragraph entitled

“ELEMENTS-COUNT III,” describing that offense. As such, the placement of this

instruction is both problematic and erroneous because the elements “listed above” are

the elements of the interference-with-an-emergency-request-for-assistance offense.

The self-defense paragraph goes on to state, “[y]ou have heard evidence that

when the altercation between the defendant and [the victim] occurred the defendant

Danny Wayne Alcoser believed his use of force was necessary to defend himself against

[the victim’s] use or attempted use of unlawful force.” Appellant asserts the instruction on

self-defense does not contain an application paragraph. While this sentence does state

Appellant’s claim of self-defense, it falls fatally short of actually being an application

paragraph. Nowhere is the term “unlawful force” defined. Furthermore, merely restating

Appellant’s claim of self-defense is not the same as instructing the jury to find him not

guilty should they find the elements of the affirmative defense to be true. As such, this

instruction contains multiple errors.

The self-defense instruction does provide that “[a] person’s use of force against

another that would constitute the crime of Assault is not a criminal offense if the person

reasonably believed the force used was immediately necessary to protect the person

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against the other’s use or attempted use of unlawful force.” This portion of the charge of

the court is also erroneous because it does not include the definition of “reasonable belief”

which is “a belief that would be held by an ordinary and prudent man in the same

circumstances as the actor.” TEX. PENAL CODE ANN. § 1.07(a)(42) (West Supp. 2019). A

charge cannot fully set forth the law applicable to the case without including a statutorily

defined word or phrase. Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986).

Additionally, the instruction on self-defense failed to include a presumption instruction on

the reasonableness of Appellant’s belief that force was immediately necessary to protect

himself as the law applicable to the case. Villarreal v. State, 453 S.W.3d 429, 435 (Tex.

Crim. App. 2015). Accordingly, again, this instruction contains multiple errors.

Based on the numerous errors in the charge of the court set forth above, we find

the cumulative effect of those errors is sufficient to require this court to consider the next

inquiry in jury-charge-error analysis—i.e., whether Appellant was egregiously harmed by

that error.

HARM ANALYSIS

(1) THE JURY INSTRUCTIONS

Here, the definitions of the four culpable mental states were not tailored to the

offenses in question. See Mapolisa v. State, No. 05-16-00711-CR, 2017 Tex. App. LEXIS

6370, at *16-17 (Tex. App.—Dallas July 11, 2017, pet. ref’d) (mem. op., not designated

for publication). Accordingly, the trial court’s failure to tailor the charge to the facts of the

case weighs in favor of a finding of egregious harm.

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 Generally, no egregious harm results from an erroneous abstract paragraph when

the application paragraph correctly instructs the jury. Medina v. State, 7 S.W.3d 633,

640 (Tex. Crim. App. 1999). In the underlying case, the court’s charge did not include an

abstract paragraph defining the elements of either child endangerment or interference

with an emergency request for assistance. This omission may appear innocuous in light

of the application paragraphs provided; however, upon closer examination, based on the

numerous errors in the charge, the absence of an abstract paragraph defining those

offenses weighs in favor of a finding of egregious harm.

Abstract paragraphs inform the jury as to the law applicable to the case, i.e., they

inform the jury as to the essential elements of the offense charged. Although a proper

application paragraph may mitigate an error in the abstract paragraph; see Anderson v.

State, No. 10-14-00182-CR, 2015 Tex. App. LEXIS 11134, at *19 (Tex. App.—Waco Oct.

29, 2015, pet. ref’d) (mem. op., not designated for publication), it is hard to imagine how

an application paragraph can operate as a substitute for the complete omission of an

abstract statement of the essential elements of an offense. The complete failure to define

an offense leaves a jury free to speculate on the law applicable to the case. Accordingly,

the omission of an abstract paragraph, an error committed not once but twice, weighs in

favor of a finding of egregious harm.

Additionally, of critical importance is the fact that the outline application paragraph

pertaining to the offense of child endangerment combines the element of an applicable

mens rea concerning the accused’s conduct with the requirement that the jury find that

such conduct placed the child “in imminent danger” of death, bodily injury, or physical or

mental impairment. By combining separate elements into one element (remembering that

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there is no abstract paragraph defining the requisite elements), this instruction runs afoul

of the requirement that the charge “distinctly” set forth the law applicable to the case. The

combination of both cause and effect also leads to the distinct possibility that a reasonable

juror might conclude the statement, “engage in conduct that placed [the child], a child

younger than fifteen (15) years of age, in imminent danger of death, bodily injury, or

physical or mental impairment,” was a comment on the weight of the evidence rather than

a separate element of the offense. (Emphasis added). By depriving the accused of a

clear and unequivocal finding that he committed certain conduct and that such conduct

caused that prohibited effect, the instruction served to greatly reduce the State’s burden

of proof. A reduction of the State’s burden of proof deprives the defendant of a valuable

constitutional right, weighing heavily in favor of a finding of egregiousness.

Finally, regarding the law applicable to the affirmative defense of self-defense, the

jury was not fully instructed on the law applicable to the case. Specifically, the omission

of the definition of “reasonable belief” and an instruction on the statutory presumption of

the reasonableness of Appellant’s belief that force was immediately necessary to defend

himself, left the jury completely free to speculate on the applicability of Appellant’s self-

defense theory. By virtue of these omissions, the jury did not have the opportunity to

deliberate by applying what an “ordinary and prudent man” would have done under the

same or similar circumstances. These omissions vitally affected the applicability and

understandability of Appellant’s key defensive theory. Based on the cumulative effect of

these errors, we find those omissions weigh in favor of a finding of egregious harm.

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 (2) THE STATE OF THE EVIDENCE

In this case, the jury heard evidence of an on-again, off-again romance between

Appellant and the complainant. The complainant testified that she still loved Appellant

and she did not want him to leave her. According to Appellant, the complainant was

jealous that he was temporarily living with an ex-girlfriend and that jealousy caused her

to be the first aggressor.

Furthermore, the jury was presented with two versions of the charged offenses that

resulted in the complainant’s injuries. On one hand, the complainant testified that

Appellant assaulted and threatened her, engaged in conduct that placed her infant in

imminent danger of bodily injury, and damaged her phone to prevent her from calling the

police. On the other hand, Appellant testified the complainant was the instigator of the

conflict because she did not want him to leave her and because she feared losing custody

of her children. This “he-said/she-said” state of the evidence made the jury’s duty

critical—a job that absolutely depends on accurate and complete instructions and

definitions.

Appellant admitted his conduct when he testified. However, he testified that he

acted in response to physical provocation from the complainant. Under the state of the

evidence, the errors in the court’s charge relevant to Appellant’s claim of self-defense

become more critical. While the jury’s rejection of Appellant’s version of the events is

understandable, the failure to properly instruct that jury on the law applicable to self-

defense weighs in favor of a finding of egregiousness.

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 (3) THE ARGUMENTS OF COUNSEL

During opening arguments, the prosecutor argued that while the complainant did

sign an affidavit of non-prosecution, it was done so only because she did not want

Appellant to have legal problems and not because the events did not occur. In closing

arguments regarding the assault, the prosecutor emphasized that Appellant “intentionally”

committed the offenses. “[H]e knew exactly what he was doing, which quite frankly, I

don’t think you even need to look at reckless or knowingly, because he intended to do

these things.” (Emphasis added). The prosecution focused on the intentional nature of

Appellant’s conduct, which Appellant admitted, and not on the result of that conduct.

Again, because assault—family violence is a result-oriented offense, the prosecutor’s

reference to intentional nature of his conduct rather that the result of his conduct was both

confusing and erroneous.

As to the charge of child endangerment, the prosecutor argued that “[w]hen you

look at Count II . . . [Appellant] knew what he did.” The prosecutor’s argument continued

as follows:

so when you’re looking at Count II [sic] the Interference with an Emergency
Call, there’s a section that talks about criminal negligence. That, basically,
says that if you don’t believe that he intentionally, knowingly or recklessly
did it, that he could also do it by criminal negligence, and, quite frankly,
Ladies and Gentlemen, I don’t even think you all need to get there, but if
you do get all the way to criminal negligence, he absolutely knew that there
was a substantial risk of harm to [the child]. You cannot shove a grown
woman holding a child down into a hard, porcelain bathtub without creating
a risk of harm to that child.

The prosecutor incorrectly and interchangeably argued the State had proven the culpable

mental state with respect to Count II (child endangerment) and Count III (interference with

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an emergency call) to the jury. The only culpable mental state applicable to interference

with a request for emergency assistance is “knowingly.” Therefore, referencing “criminal

negligence” with regard to that offense was a misstatement of the law. See TEX. PENAL

CODE ANN. § 42.062(a). Endangering a child, on the other hand, can be committed

“intentionally, knowingly, recklessly, or with criminal negligence.” Based on this court’s

review of the prosecutor’s arguments, we conclude the jurors were not only misguided

and left without adequate explanation as to the appropriate culpable mental states to

apply to either Count II or Count III, they were, in fact, affirmatively misinformed by being

given an incorrect explanation. The lack of clarity with respect to the jury charge itself,

when coupled with the prosecutor’s incorrect and confusing arguments weigh heavily in

favor of a finding of egregious harm.

(4) ANY OTHER INFORMATION REVEALED BY THE ENTIRE RECORD

Finally, a review of the entire record illustrates the inherent risks of combining

multiple offenses with different applicable mental states into one charge. The jury was

not properly instructed on any of the offenses. Instead, it received a hodge-podge of

inappropriately defined terms and offenses. While this court acknowledges that

egregious harm is a “high and difficult standard,” we conclude the multiple errors in the

charge had the cumulative effect of depriving Appellant of a fair trial and vitally affected

his defensive theory. See Abbott v. State, 196 S.W.3d 334, 349 (Tex. App.—Waco 2006,

pet. ref’d) (quoting Chamberlain v. State, 998 S.W.2d 230, 238 (Tex. Crim. App. 1999)

(“It is conceivable that a number of errors may be found harmful in their cumulative

effect.”)). Accordingly, we conclude that Appellant was egregiously harmed by the

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multiple errors in the charge. Issues two and three are sustained. Our disposition of

these issues pretermits consideration of issues one and four. See TEX. R. APP. P. 47.1.

CONCLUSION

The trial court’s judgments are reversed and the causes are remanded to the trial

court for further proceedings.

Patrick A. Pirtle
Justice

Publish.

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