Gonzalez, Victor Ortiz

IN THE COURT OF CRIMINAL APPEALS
OF TEXAS

NO. PD-0572-19

VICTOR ORTIZ GONZALEZ, Appellant

v.

THE STATE OF TEXAS

ON STATE’S PETITION FOR DISCRETIONARY REVIEW
FROM THE SECOND COURT OF APPEALS
TARRANT COUNTY

SLAUGHTER, J., delivered the opinion of the Court in which KEASLER, HERVEY,
RICHARDSON, YEARY, and KEEL, JJ., joined. KELLER, P.J., and NEWELL and
WALKER, JJ., concurred.

OPINION

Is a defendant egregiously harmed by an erroneous jury charge if the error at issue

effectively amounts to nothing more than a formatting defect? In this case, the unobjected-

to jury instructions tracked the statutory language and allowed for conviction for an

intentional, knowing, or reckless aggravated assault on a public servant. The indictment,

however, alleged only an intentional or knowing aggravated assault on a public servant.
 Gonzalez - 2

We conclude that erroneously including recklessness in the jury charge application

paragraph which tracked the statutory language rather than the indictment’s language was,

under the facts of this case, a mere formatting defect. This defect did not cause egregious

harm here because: (1) the record reflects that the parties and the trial court anticipated that

the jury would consider the reckless culpable mental state; (2) our precedent allows

recklessness to be submitted as a lesser-included-offense instruction under these

circumstances; (3) the inclusion of recklessness in the application paragraph rather than in

a separate lesser-offense instruction did not substantively affect the potential theories of

liability upon which the jury could convict Appellant; and (4) reckless aggravated assault

on a public servant carries the same range of punishment as the charged intentional or

knowing aggravated assault on a public servant. We, therefore, reverse the judgment of the

court of appeals and remand this case to that court for further proceedings.

I. Background and Procedural History

Several officers were dispatched to locate a vehicle carrying stolen merchandise.

The merchandise had been equipped with a tracking device and placed in a “bait” car before

being stolen. Using the tracking device, the officers traced the merchandise to a Hummer

driven by Appellant. After observing the Hummer commit a traffic violation, the officers

initiated a traffic stop. Appellant attempted to flee but ran into a dead end in an apartment

complex’s parking lot. Two police cars pulled up closely on either side of the Hummer to

prevent Appellant from getting out. As Officer Taylor Rogers got out of his patrol car to
 Gonzalez - 3

arrest Appellant, Appellant reversed and accelerated. The Hummer collided with the side

of a patrol car and injured Officer Rogers. After successfully reversing away from the

officers, Appellant sped off, crashed the Hummer into a nearby structure, and then fled on

foot.

Appellant was eventually arrested and charged with aggravated assault of a public

servant with a deadly weapon. See TEX. PENAL CODE §§ 22.02(a)(2), (b)(2)(B). 1 Although

the aggravated assault statute permits conviction for a first-degree felony where the actor

intentionally, knowingly, or recklessly causes bodily injury to a public servant and uses or

exhibits a deadly weapon during the assault, see id. §§ 22.01(a)(1), 22.02(a)(2), (b)(2)(B), 2

the indictment omitted recklessness as a possible culpable mental state. Instead, the

1
Appellant was also charged with and ultimately convicted of evading arrest or detention with a
vehicle. See TEX. PENAL CODE § 38.04. His conviction for evading arrest is not at issue in this
proceeding.
2
Penal Code Section 22.02 imposes first-degree felony liability if a person “commits assault as
defined in § 22.01 and the person: . . . (2) uses or exhibits a deadly weapon during the commission
of the assault,” and the offense is committed “against a person the actor knows is a public servant
while the public servant is lawfully discharging an official duty[.]” TEX. PENAL CODE §
22.02(a)(2), (b)(2)(B). Assault under section 22.01 in turn is defined as “intentionally, knowingly,
or recklessly caus[ing] bodily injury to another[.]” Id. § 22.01(a)(1). Thus, a person is liable for a
first-degree felony if he intentionally, knowingly, or recklessly causes bodily injury to a person he
knows is a public servant while the person is lawfully discharging an official duty and he uses or
exhibits a deadly weapon during the commission of the assault. It makes no difference to the degree
of the felony or the possible range of punishment whether the defendant was intentional, knowing,
or reckless about the result of his conduct.
 Gonzalez - 4

indictment alleged only that Appellant intentionally or knowingly caused bodily injury to

Officer Rogers and that he used or exhibited a deadly weapon, to-wit: the Hummer. 3

Despite the indictment’s omission of recklessness as an available culpable mental

state, both the State and Appellant addressed at trial, without objection, all three statutorily-

permissible culpable mental states—intentionally, knowingly, and recklessly—in voir dire

and in closing arguments. Likewise, rather than tracking the indictment’s language, the

jury charge’s abstract and application paragraphs tracked the statutory language and

allowed the jury to convict Appellant if he intentionally, knowingly, or recklessly caused

bodily injury to Officer Rogers while using or exhibiting a deadly weapon. 4 The record

3
The indictment for aggravated assault alleged that Appellant “intentionally or knowingly caused
bodily injury to T. Rogers, a public servant, . . . by striking T. Rogers’ patrol car with the
defendant’s car, pinning T. Rogers between the two cars, while T. Rogers was lawfully discharging
an official duty and the defendant knew that T. Rogers was a public servant, and the defendant did
use or exhibit a deadly weapon during the commission of the assault, to-wit: an automobile, that
in the manner of its use or intended use was capable of causing death or serious bodily injury.”
4
The application portion of the charge for aggravated assault of a public servant stated:

Now, if you find from the evidence beyond a reasonable doubt that on or about the
24th day of April, 2017, in Tarrant County, Texas, the defendant, [Appellant], did
then and there intentionally, knowingly or recklessly cause bodily injury to T.
Rogers, a public servant, to-wit: an employee or officer of government, namely a
police officer for the City of Fort Worth, by striking T. Rogers’ patrol car with the
defendant’s car, pinning T. Rogers between the two cars, while T. Rogers was
lawfully discharging an official duty and the defendant knew that T. Rogers was a
public servant, and the defendant did use or exhibit a deadly weapon during the
commission of the assault, to-wit: an automobile, that in the manner of its use or
intended use was capable of causing death or serious bodily injury, then you will
find the defendant guilty of aggravated assault against a public servant as charged
in the indictment.
 Gonzalez - 5

does not contain any discussion between the trial judge and parties regarding the inclusion

of recklessness in the charge, and Appellant did not object to the inclusion of the unindicted

culpable mental state. The charge included an instruction on second-degree felony

aggravated assault with a deadly weapon (e.g., not against a public servant, see TEX. PENAL

CODE § 22.02(a)(2)), but aside from this, no other lesser-included offense instructions were

discussed or included in the charge. The jury ultimately convicted Appellant of the charged

offense, found the single enhancement paragraph true, and assessed Appellant’s

punishment at forty-five years’ imprisonment plus a $10,000 fine.

On appeal, Appellant complained that the jury charge was erroneous because of its

inclusion of the unindicted culpable mental state of recklessness. 5 The State conceded that

the charge was erroneous in this respect, and Appellant conceded that he had not objected

to the error. Thus, the court of appeals’ analysis focused solely on whether Appellant was

egregiously harmed by the error.

Applying the four-factor framework from Almanza v. State 6 for evaluating harm in

5
In addition to his charge-error complaint, Appellant raised two other complaints on appeal: (1)
that the evidence was insufficient to show that he intentionally or knowingly caused bodily injury
to Officer Rogers, and (2) that his $10,000 fine assessed for evading arrest must run concurrently
with the $10,000 fine assessed for aggravated assault, and therefore, the order to withdraw funds
from his inmate trust account could authorize withdrawal of only one of the fines, not both. The
court of appeals rejected Appellant’s sufficiency complaint and, in light of its reversal of the
aggravated assault conviction based on the egregiously harmful charge error, it declined to reach
Appellant’s complaint regarding the withdrawal of fees.
6
See 686 S.W.2d 157 (Tex. Crim. App. 1985) (op. on reh’g).
 Gonzalez - 6

this context, the court of appeals concluded that the factors overall weighed in favor of

finding egregious harm. Gonzalez v. State, No. 02-18-00179-CR, 2019 WL 2042573, at *6

(Tex. App.—Fort Worth May 9, 2019) (mem. op., not designated for publication). The

court concluded that “by charging the jury on an un-indicted culpable mental state and by

arguing to the jury that recklessness was sufficient to convict Appellant, especially where

Appellant’s mental state was a disputed fact issue, the charge egregiously harmed

Appellant by lowering the State’s burden of proof.” Id. Accordingly, it reversed

Appellant’s conviction for aggravated assault on a public servant and remanded the case to

the trial court for further proceedings. Id.

II. Analysis

Inclusion of the culpable mental state of recklessness in a jury charge application

paragraph for aggravated assault causing bodily injury is error when recklessness is omitted

from the indictment. Such error is avoided, however, if reckless aggravated assault is

instead included as a standalone lesser-included-offense instruction. The question here is

whether the erroneous inclusion of recklessness in the application paragraph, rather than

as a separate lesser-included-offense instruction causes egregious harm. 7 Relying in part

7
The State’s petition for discretionary review included three grounds. However, we granted review
of only one of those grounds:

Can a jury charge applying an unalleged reckless culpable mental state for
aggravated assault in a unitary application instruction cause egregious harm when
applying that same reckless culpable mental state as a lesser-included offense
would not even be error?
 Gonzalez - 7

on our reasoning and holdings in Reed v. State 8 and Hicks v. State, 9 we hold that such error

is a mere formatting defect that did not substantively affect the jury’s consideration of

Appellant’s case and as such did not cause egregious harm. Therefore, we reverse the court

of appeals’ finding of egregious harm.

A. Applicable Law for Evaluating Egregious Harm

The standard of review for jury-charge error depends on whether the error was

preserved. Jordan v. State, 593 S.W.3d 340, 346 (Tex. Crim. App. 2020) (citing Almanza

v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985)). If error was preserved with a timely

objection, then such error is reversible if it caused “some harm.” Id. Conversely, when

there is jury-charge error but the defendant fails to object, as is the case here, we must

determine whether the error caused the defendant “egregious harm.” Id.

“Errors that result in egregious harm are those that affect ‘the very basis of the

case,’ ‘deprive the defendant of a valuable right,’ or ‘vitally affect a defensive theory.’”

Ngo v. State, 175 S.W.3d 738, 743 (Tex. Crim. App. 2005) (quoting Hutch v. State, 922

We refused two of the State’s grounds for review that had more generally asked us to evaluate the
court of appeals’ weighing of the evidence and the parties’ arguments in reaching its egregious
harm conclusion. Therefore, our analysis is limited to the narrow question in ground one pertaining
to the status of reckless aggravated assault as a lesser-included offense of intentional or knowing
aggravated assault.
8
117 S.W.3d 260 (Tex. Crim. App. 2003).
9
372 S.W.3d 649 (Tex. Crim. App. 2012).
 Gonzalez - 8

S.W.2d 166, 171 (Tex. Crim. App. 1996)); see also Chambers v. State, 580 S.W.3d 149,

154 (Tex. Crim. App. 2019) (stating that egregious harm occurs when the error “created

such harm that the appellant was deprived of a fair and impartial trial”). “Under both [the

some harm and egregious] harm standards, the appellant must have suffered some actual—

rather than merely theoretical—harm.” Id.; see also Ngo, 175 S.W.3d at 750 (“Under

the Almanza standard, the record must show that a defendant has suffered actual, rather

than merely theoretical, harm from jury instruction error.”). In determining whether there

was egregious harm, we ordinarily evaluate the entire record in light of Almanza’s four

factors (the entirety of the charge, the state of the evidence, the arguments to the jury, and

any other relevant information). French v. State, 563 S.W.3d 228, 237 (Tex. Crim. App.

2018). In some instances, however, a single consideration may persuade us that the risk of

harm is so minimal that it precludes a finding of egregious harm. See id. at 239 (where risk

of harm is so small that it “may properly be characterized as not ‘remotely significant’ . . .

any harm resulting from the error is only theoretical harm”). This case presents such a

situation.

B. Discussion of Reed v. State and Hicks v. State

In their arguments to this Court, the parties focus on two of our prior decisions: Reed

v. State, 117 S.W.3d 260, and Hicks v. State, 372 S.W.3d 649. Although Reed and Hicks

are both cases addressing error rather than harm, they inform our analysis here because the

nature of the error at issue in this case affects our harm analysis.
 Gonzalez - 9

In Reed, as in the instant case, the indictment for aggravated assault alleged only the

culpable mental states of intentional or knowing, but the jury charge’s application

paragraph allowed for a conviction based on intentional, knowing, or reckless culpable

mental states. Reed, 117 S.W.3d at 260-61. Reed held that the jury charge was erroneous

because, although the aggravated assault statute would permit a conviction based on

recklessness, the indictment had not alleged it. Id. at 264. Thus, by including the unindicted

reckless culpable mental state in the application paragraph for the charged offense, the

instructions raised the possibility that the jury found the defendant guilty of “recklessly

causing the bodily injury, which is conduct that was not alleged in the indictment.” Id. at

265. But, Reed emphasized that its holding applied only to the indicted-offense

instructions. It noted that a trial court would not err by including reckless aggravated assault

as a lesser-included-offense instruction. Id. at 264. Moreover, while we determined the

issue of error, we remanded the issue of harm to the court of appeals. Id. at 265.

In Hicks, the issue was whether the trial court erred by including reckless aggravated

assault as a standalone lesser-included-offense instruction. 372 S.W.3d at 655-58. Relying

on our suggestion in Reed, we upheld the standalone lesser-included-offense instruction as

proper explaining that, pursuant to Code of Criminal Procedure Article 37.09, reckless

aggravated assault was necessarily a lesser-included offense of intentional or knowing

aggravated assault because “‘it differs from the offense charged only in the respect that a

less culpable mental state suffices to establish its commission.’” Id. at 653 (quoting TEX.
 Gonzalez - 10

CODE CRIM. PROC. art. 37.09(3)). 10 We also noted that in determining whether something

is a lesser offense under Article 37.09 that “[d]ifferences in the level, range, or manner of

punishment are irrelevant.” Id. at 654. Thus, as long as recklessness is raised by the

evidence (which it was in Hicks), a trial court does not err by submitting a charge on

reckless aggravated assault as a lesser-included offense of a charged intentional or knowing

aggravated assault. Id. at 658. Accordingly, while Reed prohibits including an uncharged

reckless culpable mental state in the instructions for the indicted offense, Hicks allows for

it to be included in a separate lesser-included-offense instruction. Id. at 657. 11 With this in

mind, we consider the question of harm at issue here.

10
In Hicks, we further explained this concept, stating, “By definition, ‘reckless’ is a lower level of
culpability than ‘knowing,’ and ‘knowing’ is a lower level of culpability than ‘intentional.’ Thus,
a ‘knowing’ assault is a lesser-included offense of an ‘intentional’ assault, and a ‘reckless’ assault
is a lesser-included offense of a ‘knowing’ assault. Conversely, proof of a higher level of
culpability constitutes proof of a lower level of culpability. Thus, proof of a defendant’s intentional
act also proves recklessness.” Hicks, 372 S.W.3d at 653 (footnotes and citations omitted).
11
Addressing Reed in our Hicks opinion, we observed that our holdings in the two cases were
entirely consistent. Hicks, 372 S.W.3d at 657. Reed found error because the inclusion of
recklessness in the application paragraph for the charged offense “allowed for conviction of a
broader offense than that alleged in the indictment.” No such concern was present in Hicks, where
recklessness was separately included as a proper lesser-included offense instruction. Id. We also
noted that Reed had already acknowledged that submission of recklessness as a lesser-included
offense would be proper under these circumstances pursuant to this Court’s prior decision in Rocha
v. State. Id. (discussing Reed, 117 S.W.3d at 263, and Rocha v. State, 648 S.W.2d 298, 302 (Tex.
Crim. App. 1982) (op. on reh’g)). Reed did not apply the rule from Rocha only because no lesser-
included offense instruction was given in Reed. Id. Thus, our analysis in Hicks confirmed that Reed
was controlling precedent for the proposition that a court may not include an unindicted
recklessness culpable mental state in the instructions for a charged intentional or knowing
aggravated assault. But nothing about that rule foreclosed the holding in Hicks permitting a charge
on recklessness in the form of a proper lesser-included offense instruction.
 Gonzalez - 11

C. The trial court’s error amounts to a formatting defect that did not
affect the substantive theories of liability or range of punishment.

Applying our holding in Hicks to the instant circumstances, it is clear that the trial

court was authorized to charge the jury on the recklessness culpable mental state. See Hicks,

372 S.W.3d at 657-58. The court simply chose the wrong format for doing so—it placed

the lesser-included-offense of reckless aggravated assault in the application paragraph,

rather than in a standalone lesser-included offense instruction. And while the record does

not indicate that either Appellant or the State requested such a separate lesser-included

instruction, it can be inferred that they both anticipated that the jury would probably

consider recklessness. Both parties discussed recklessness with the jury in voir dire and in

closing arguments, and neither party objected to its inclusion in the jury charge. Moreover,

our precedent provides that the trial court was authorized to sua sponte instruct the jury on

any lesser-included offenses raised by the evidence. See Humphries v. State, 615 S.W.2d

737, 738 (Tex. Crim. App. 1981). We can infer that the trial judge believed recklessness

was raised by the evidence here because, otherwise, he would not have included it as an

applicable culpable mental state. And our own independent review of the record indicates

that the facts did indeed raise recklessness; both the State and Appellant concede as much

in their briefs. Thus, the trial court’s only error was in the incorrect placement of

recklessness in the application paragraph for the charged offense rather than in a standalone

lesser-included-offense instruction.
 Gonzalez - 12

Determining whether this formatting error was egregiously harmful requires us to

compare the instructions actually given to the ones that should have been given. A proper

jury charge would have included the lesser-included offense of reckless aggravated assault

in a separate paragraph rather than in the charged offense’s application paragraph. But as

we explain below, this formatting difference would not have had any significant impact on

the jury’s ability to convict Appellant, nor would it have altered his possible range of

punishment.

Regarding the jury’s ability to convict, even if given the proper charge, the jury still

could have convicted Appellant of the same offense under any of the three statutorily-

permissible culpable mental states (intentional, knowing, or reckless). See TEX. PENAL

CODE §§ 22.01(a)(1), 22.02(a)(2). There would be no substantive effect. The only real

difference between submission of recklessness in the application paragraph versus through

a lesser-included offense instruction is that, in the former situation, the jury could be split

on Appellant’s culpable mental state, whereas in the latter scenario, the jury would have to

be unanimous about his recklessness. See Landrian v. State, 268 S.W.3d 532, 537-38 (Tex.

Crim. App. 2008) (stating that in context of bodily injury assault, all three listed culpable

mental states—intentional, knowing, reckless—are “conceptually equivalent,” and jury

may be split on which culpable mental state applies to convict); Hicks, 372 S.W.3d at 657

(noting that to find the defendant guilty of the lesser offense, the jury would have to first

acquit him of the charged offense “before unanimously finding [him] guilty of the lesser-
 Gonzalez - 13

included offense of reckless aggravated assault”). But because proof of a greater culpable

mental state necessarily constitutes proof of the lesser culpable mental state, the jury’s

guilty verdict indicates that it was at least unanimous about Appellant’s recklessness and

could have convicted him on that basis regardless of whether it was split on the

intentional/knowing culpable mental states. See TEX. PENAL CODE § 6.02(e) (“Proof of a

higher degree of culpability than that charged constitutes proof of the culpability

charged.”); Hicks, 372 S.W.3d at 657 (noting that for purposes of jury unanimity in this

context, “the three culpable mental states are ‘conceptually equivalent’ because proof of

the greater culpable mental state is necessarily proof of the lesser ones”). Thus, the

difference in unanimity requirements between the two formats did not meaningfully affect

Appellant’s likelihood of being convicted.

With respect to any effect of this error on Appellant’s potential punishment, we note

that regardless of whether he was convicted for an intentional, knowing, or reckless

aggravated assault against a public servant using a deadly weapon, Appellant was facing

first-degree felony liability with the same range of punishment. See TEX. PENAL CODE §§

22.01(a)(2), 22.02(a)(2), (b)(2)(B). Thus, the trial court’s error in inserting recklessness

into the application paragraph as opposed to including recklessness within a lesser-offense

instruction did not deprive Appellant of any valuable right or impair the fairness of the
 Gonzalez - 14

proceedings with respect to the assessment of punishment. In light of these considerations,

any harm resulting from the error was not egregious. 12

III. Conclusion

Because the trial court’s error in including recklessness in the application paragraph

for the charged offense effectively amounts to a formatting error that did not substantively

affect the relevant theories of liability or the possible range of punishment, we hold that

Appellant did not suffer egregious harm as a result of the charge error. We, therefore,

reverse the judgment of the court of appeals. Because the court of appeals did not address

all the issues raised by Appellant on appeal, we remand this case to the court of appeals for

further consideration of the remaining issues in a manner consistent with this Court’s

opinion.

Delivered: October 28, 2020

Publish

12
Appellant also argues that because the indictment failed to allege any reckless acts the jury was
prohibited from considering recklessness. See TEX. CODE CRIM. PROC. art. 21.15 (stating that
whenever recklessness is part of an offense, the indictment “must allege, with reasonable certainty,
the act or acts relied upon to constitute recklessness”). In making this argument, however,
Appellant conflates the concepts of error and harm. In Reed, we explained that Article 21.15
requires an indictment to give notice of any allegedly reckless acts and thus precludes an uncharged
reckless mental state from being included in the instructions for the primary offense. Reed, 117
S.W.3d at 265. But we also explained that, in situations where recklessness was not alleged in the
indictment, “Article 21.15 does not keep the parties from submitting a lesser-included offense with
a reckless culpable mental state to the jury.” Id. Thus, while Article 21.15 and Reed would support
finding error here, that fact has no bearing on our harm analysis. Accordingly, we reject
Appellant’s argument that Article 21.15 poses any impediment to our harm analysis.