IN THE
TENTH COURT OF APPEALS
No. 10-14-00229-CR
JAMES TYRONE RIGGS,
Appellant
v.
THE STATE OF TEXAS,
Appellee
From the 66th District Court
Hill County, Texas
Trial Court No. 38026
OPINION
James Tyrone Riggs was convicted of the felony offense of evading arrest or
detention with a vehicle. See TEX. PENAL CODE ANN. § 38.04(a), (b)(2)(A) (West 2011).
He pled true to two prior felony convictions and was sentenced to 65 years in prison.
Because Riggs was not harmed by the errors in the court’s charge to the jury at
guilt/innocence and at punishment, the trial court’s judgment is affirmed.
BACKGROUND
Riggs was driving his convertible Corvette with the top down during the late
evening of October 12, 2013. Officer David Haakinson, of the Hillsboro Police
Department, passed Riggs at an intersection, recognized Riggs, and asked dispatch to
check Riggs for outstanding warrants. When dispatch advised Haakinson that Riggs
had an outstanding Class C warrant and that Riggs’s driver’s license was suspended,
Haakinson decided to stop Riggs. After he caught up to Riggs, Haakinson turned on
his overhead lights. Riggs did not stop. He continued down the street and accelerated
onto another street. Haakinson then activated his siren. Riggs turned onto another
street and again accelerated. Haakinson believed Riggs was travelling well over the
posted speed limit. Riggs turned on yet another street, entered his driveway, and
pulled into his backyard where he was arrested.
JURY CHARGE ERROR
In five issues, Riggs complains about jury charge error. Because all five issues
relate to alleged charge error, we will discuss the law applicable to our review of such
complaints first to the extent the law applies to more than one issue. To the extent the
applicable law applies to only one issue, we will discuss that specific law in connection
with our review of that issue.
Standard of Review
A claim of jury-charge error is reviewed using the procedure set out in Almanza.
Barrios v. State, 283 S.W.3d 348, 350 (Tex. Crim. App. 2009); Almanza v. State, 686 S.W.2d
157, 171 (Tex. Crim. App. 1985); Haley v. State, No. 10-13-00264-CR, 2014 Tex. App.
Riggs v. State Page 2
LEXIS 7207, *2 (Tex. App.—Waco July 3, 2014, pet. ref’d) (not designated for
publication). If error is found, we then analyze that error for harm. Middleton v. State,
125 S.W.3d 450, 453 (Tex. Crim. App. 2003).
If an error was properly preserved by objection, reversal will be necessary if
there is some harm to the accused from the error. Almanza, 686 S.W.2d at 171.
Conversely, if error was not preserved at trial by a proper objection, a reversal will be
granted only if the charge error causes egregious harm, meaning the appellant did not
receive a fair and impartial trial. Id. 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). However, the Court of
Criminal Appeals has suggested that it is unlikely that charge error in the abstract
portion of the charge which is not present in the application paragraph will be
egregiously harmful. See Medina v. State, 7 S.W.3d 633, 640 (Tex. Crim. App. 1999).
For both preserved and unpreserved charging error, the actual degree of harm
must be assayed in light of the entire jury charge, the state of the evidence, including
contested issues and weight of probative evidence, the argument of counsel and any
other relevant information revealed by the record of the trial as a whole. Patrick v. State,
906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Arline v. State, 721 S.W.2d 348, 351 (Tex.
Crim. App. 1986). To obtain a reversal for jury-charge error, an appellant must have
Riggs v. State Page 3
suffered actual harm, not merely theoretical harm. Sanchez v. State, 376 S.W.3d 767, 775
(Tex. Crim. App. 2012); Arline, 721 S.W.2d at 352.
Conduct Elements
Riggs complains in his fourth issue that the charge included definitions of
conduct that were not relevant to the charged offense. Because no court in Texas has
determined what conduct elements are involved in the offense of evading arrest or
detention, we discuss this issue first. In this issue, Riggs contends the trial court
erroneously defined the culpable mental states of “intentionally” and “knowingly” in
the charge to the jury on guilt/innocence. Specifically, he contends that the trial court
failed to properly tailor the definitions to the applicable conduct elements.
There are three "conduct elements" which may be involved in an offense: (1) the
nature of the conduct; (2) the result of the conduct; and (3) the circumstances
surrounding the conduct. Cook v. State, 884 S.W.2d 485, 487 (Tex.Crim.App.1994). An
offense may contain any one or more of these "conduct elements" which alone or in
combination form the overall behavior which the Legislature criminalized, and it is
these essential "conduct elements" to which a culpable mental state must apply. Id.;
Gutierrez v. State, 446 S.W.3d 36, 40 (Tex. App.—Waco 2014, pet. ref’d). Thus, the
culpable mental state definitions in the charge must be tailored to the conduct elements
of the charged offense. Cook, 884 S.W.2d at 487; Patrick v. State, 906 S.W.2d 481, 492
(Tex. Crim. App. 1995); Gutierrez, 446 S.W.3d at 40. Where the charged offense does not
Riggs v. State Page 4
include a particular conduct element, it is error for the court's charge to contain a
definition of the culpable mental state for that conduct element in the abstract portion of
the charge. See Hughes v. State, 897 S.W.2d 285, 295-296 (Tex. Crim. App. 1994);
Gutierrez, 446 S.W.3d at 40. A trial court does not err, however, in defining the culpable
mental states for nature, result, and circumstances surrounding conduct when all three
of the conduct elements are contained within the offense. See Patrick, 906 S.W.2d at 492
(Tex. Crim. App. 1995); Gutierrez, 446 S.W.3d at 40.
The court's charge in this case defined "intentionally" and "knowingly" according
to Texas Penal Code Section 6.03. TEX. PENAL CODE ANN. § 6.03(a) and (b) (West 2011).
Those definitions are as follows:
(a) 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.
(b) 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.
Id.
Riggs argues that the offense for which he was charged, evading arrest or
detention with a vehicle, focuses on the nature of the actor’s conduct and the
circumstances surrounding his conduct but does not focus on the result of the actor’s
conduct. Thus, his argument continues, the trial court’s inclusion of the result of
Riggs v. State Page 5
conduct language in the definitions was error.
A person commits the offense of evading arrest or detention if the person
“intentionally flees from a person he knows is a peace officer…attempting lawfully to
arrest or detain him.” See TEX. PENAL CODE ANN. § 38.04(a) (West 2011). Where specific
acts are criminalized because of their very nature, a culpable mental state must apply to
committing the act itself. See Cook v. State, 884 S.W.2d 485, 487 (Tex. Crim. App. 1994);
McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). But, as charged in this
case, the act of fleeing is not criminal by its very nature. See McQueen, 781 S.W.2d at 603
(the act of operating motor vehicle in the offense of unauthorized use of a motor vehicle
is not criminal by its nature). Neither is it a result-of-conduct offense because the
statute does not prohibit any specific result of fleeing. See id. Instead, the offense of
evading arrest or detention with a vehicle is a circumstances-surrounding-the-conduct
offense; the act of fleeing becomes criminal only because of the actor’s knowledge that a
peace officer is attempting lawfully to arrest or detain the actor. See Huffman v. State,
267 S.W.3d 902, 908 (Tex. Crim. App. 2008); McQueen, 781 S.W.2d at 603.
However, the culpable mental state of “intentionally” prescribed by the statutory
language of evading arrest or detention does not modify the circumstances surrounding
the conduct, but instead, precedes the act of fleeing. A similar problem was noted by
the Court of Criminal Appeals for the offense of unauthorized use of a motor vehicle in
McQueen v. State, 781 S.W.2d 600, 604 (Tex. Crim. App. 1989). There, the Court held that
Riggs v. State Page 6
because some form of culpability must apply to those conduct elements which make the
overall conduct criminal, the offense of unauthorized use of a motor vehicle
encompassed two conduct elements: “that the defendant intentionally or knowingly
operated a vehicle (nature of conduct) knowing that such operation was without the
effective consent of the owner (circumstances surrounding conduct).” Id. For the
reasons expressed in McQueen, we find that the offense of evading arrest or detention
also includes two, and only two, conduct elements: “nature of the conduct” which
applies to the element of intentionally fleeing and “circumstances surrounding the
conduct” which applies to the element of knowledge that a peace officer is attempting
lawfully to arrest or detain the person.
Thus, it was error for the trial court to include the result-of-the-conduct element
in its definitions of the culpable mental states of intentionally and knowingly in the
abstract portion of the charge. We must now determine whether Riggs was harmed by
this error.
Harm Analysis
Riggs did not object to this portion of the charge. Accordingly, we will conduct
our review using the above-described standard of review for egregious harm. Along
with the other Almanza factors, we may also consider the degree, if any, to which the
culpable mental states were limited by the application portion of the jury charge when
assessing harm. Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App. 1995); Hughes v.
Riggs v. State Page 7
State, 897 S.W.2d 285, 296 (Tex. Crim. App. 1994); Cook v. State, 884 S.W.2d 485, 492 (Tex.
Crim. App. 1994). When the application paragraph points the jury to the appropriate
portion of the definitions, this mitigates against a finding of egregious harm. See Patrick,
906 S.W.2d at 493; Reed v. State, 421 S.W.3d 24, 30 (Tex. App.—Waco 2013, pet. ref’d).
Here, the charge set out the elements of the offense and then applied those
elements to the facts of the case. Although the definitions of "intentionally" and
"knowingly" set forth the three alternative conduct elements, when those terms are
viewed in their factual context, it was apparent which conduct element applied to
which element of the offense. For instance, the application paragraph stated that Riggs
“did intentionally flee” from a “City of Hillsboro, Texas Police Officer.” Referring back
to the definitions of the culpable mental states, it can be determined that Riggs’s act of
fleeing is not a result of his conduct and thus the applicable portion of the
“intentionally” definition is the nature of Riggs’s conduct. Further, it can be determined
that Riggs’s knowledge that the “Hillsboro, Texas Police Officer” “was a peace officer,
who was attempting to lawfully arrest or detain” Riggs; and thus, the applicable
portion of the “knowingly” definition is the circumstances surrounding Riggs’s
conduct.
Although Riggs disputed the fact that he fled or knew an officer was trying to
detain him, it is clear the jury weighed more heavily the direct and circumstantial
evidence that Riggs fled while being aware that the officer was trying to arrest or detain
Riggs v. State Page 8
Riggs. Further, although Riggs’s counsel argued that the State had the burden to prove
Riggs intended the results, the State focused the jury on deciding the question of the
nature of Riggs’s flight and that Riggs was aware that the officer was attempting to
detain him.
Riggs also argues that we should take into consideration that there are numerous
alleged errors in the trial court’s charge in finding harm under this issue. Based on this
record, we decline to do so. See Estrada v. State, 313 S.W.3d 274, 311 (Tex. Crim. App.
2010); United States v. Bell, 367 F.3d 452, 471 (5th Cir. 2004) ("The cumulative error
doctrine provides relief only when constitutional errors so 'fatally infect the trial' that
they violated the trial's 'fundamental fairness.'").
Accordingly, Riggs was not egregiously harmed by the trial court’s erroneous
inclusion in the charge of the result-of-conduct definition for the culpable mental states
of the charged offense. His fourth issue is overruled.
Indictment and the Officer’s Name
In his first two issues, Riggs contends the jury charge on guilt/innocence did not
comport with the indictment in that the charge did not specifically name the officer
attempting to arrest or detain Riggs as did the indictment (Issue One), and the trial
court commented on the weight of the evidence in the charge by instructing the jurors
that the officer’s name was not a substantive element of the offense (Issue Two). Riggs
objected to the charge with regard to both complaints. Assuming without deciding that
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the charge was erroneous for the two reasons as objected to, we must determine
whether Riggs suffered some harm from the error.
Harm Analysis
We will conduct our review using the above-described standard of review.
Interestingly, Riggs was the one who caused the State and the trial court to go
down the particular path which resulted in the two complained of charge errors. As
early as voir dire and also in opening statements, Riggs tried to impose upon the State
the requirement to prove Riggs knew the name of the officer that was pursuing Riggs,
not simply that it was a peace officer that was in pursuit. The charge was apparently
worded as it was to prevent Riggs from arguing this potentially erroneous statement of
the law to the jury. See Tillery v. State, No. 05-04-00425-CR, 2005 Tex. App. LEXIS 549, *3
(Tex. App.—Dallas Jan. 26, 2005, no pet.) (not designated for publication) (peace
officer’s name is not a substantive element of the offense).
David Haakinson, the officer who attempted to detain Riggs, testified at trial and
was the peace officer identified by name in the indictment. The charge set out the
elements of the offense and the application paragraph applied the facts to the elements
without reference to the name of the specific peace officer in pursuit of Riggs. There
was never any indication that any other officer attempted to detain Riggs that night.
Further, based on the evidence presented, and as argued by the State before the jury, it
is clear that the jury believed Riggs fled from Haakinson knowing that a peace officer
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was in pursuit, although Riggs argued that he did not know any peace officer was
behind him attempting to stop him. Haakinson was in a marked patrol unit, had his
lights and siren on, and Riggs was in a convertible with the top down and accelerated
and made evasive turns after the officer’s emergency lights and siren were activated.
Accordingly, based on our review of the record using the Almanza factors, we
cannot conclude that Riggs suffered some harm from the trial court’s errors, if any, in
the charge regarding the peace officer’s name. Riggs’s first and second issues are
overruled.
Definition of “Fleeing”
In his third issue, Riggs asserts that the trial court erred by providing a non-
statutory definition of “fleeing” in the charge on guilt/innocence, thus improperly
commenting on the evidence. Fleeing was defined as “anything less than prompt
compliance with an officer’s direction to stop.” Although the definition did not point to
any specific piece of evidence for special attention, it did improperly focus the jury on
the type of evidence that would support a finding that Riggs was “fleeing.” See Kirsch v.
State, 357 S.W.3d 645, 652 (Tex. Crim. App. 2012).
Harm Analysis
Because Riggs did not object to this portion of the charge, we will conduct our
review using the above-described standard of review.
Although the improper definition was included in the abstract portion at the
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beginning of the charge, the application paragraph did not repeat it. At trial, Riggs
disputed that he “fled,” introducing his own video showing the distance covered and
road condition during the daylight hours and emphasizing that the pursuit was less
than a minute from the time the officer activated his lights until Riggs came to a stop.
However, testimony presented by the State and the dash-camera video of the chase
showed that Riggs had several opportunities to stop, sped up after Haakinson activated
his overhead lights, and only came to a stop after proceeding down his driveway and
into his backyard. The State argued Riggs failed to promptly stop; however, Riggs did
not focus on this aspect of the offense. Riggs argued that he did not flee because he did
not speed and if he had wanted to evade, he would have “[l]eft it in the dust.” He also
argued that he did not know a peace officer was behind him or that he had a warrant
out; and thus, had no reason to evade.
Based on our review of the record using the Almanza factors, we cannot conclude
that Riggs suffered egregious harm from the trial court’s inclusion of the definition of
the non-statutory term “fleeing” in the abstract portion of the court’s charge. Riggs’s
third issue is overruled.
Reasonable Doubt Instruction
In his fifth and final issue, Riggs contends the trial court erred by failing to
include a reasonable doubt instruction in the charge on punishment regarding evidence
of an extraneous offense. A trial judge must sua sponte instruct the jury at the
Riggs v. State Page 12
punishment phase that the State must prove any extraneous offenses beyond a
reasonable doubt. TEX. CODE CRIM. PROC. art. 37.07, § 3(a) (West 2006); Delgado v. State,
235 S.W.3d 244, 252 (Tex. Crim. App. 2007); Huizar v. State, 12 S.W.3d 479, 484 (Tex.
Crim. App. 2000). Because the trial court did not include this instruction, the trial court
erred.
Harm Analysis
Because Riggs did not object to this portion of the charge, we will conduct our
review using the above-described standard of review. Additionally, in determining
whether Riggs was egregiously harmed pursuant to the Almanza factors, we must
consider the impact of the omission of a reasonable doubt instruction concerning the
extraneous offense. See Ellison v. State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002);
Martinez v. State, 313 S.W.3d 358, 369-70 (Tex. App.—Houston [1st Dist.] 2009, pet.
ref’d).
Although the trial court failed to instruct the jury to not consider the extraneous
evidence unless it was proven beyond a reasonable doubt, the charge in the sentencing
phase of the trial generally told the jury that the State had the burden of proof
throughout the trial. Both the State and Riggs argued to the jury that the State had to
prove beyond a reasonable doubt that Riggs committed the extraneous offense.
The extraneous offense evidence provided during punishment was an accusation
that Riggs shot another person in the arm after a confrontation. That offense had been
Riggs v. State Page 13
charged but had not yet been tried at the time of this trial. Although Riggs denied that
he shot anyone, the alleged victim and a witness testified that Riggs shot the alleged
victim.
Further, the punishment Riggs received does not show that he was impacted by
the failure of the trial court to include a reasonable doubt instruction in the charge. At
the beginning of the punishment phase of the trial, Riggs pled true to two prior felony
convictions; thus, the range of punishment for the evading offense was enhanced to 25
to 99 years or life in prison. The State then proved one other final felony conviction.
Because Riggs had three prior felony convictions and another charged felony, the State
argued for a sentence of at least 75 years in prison. The jury assessed a sentence of 65
years in prison.
Accordingly, based on our review of the record pursuant to the Almanza factors,
we cannot conclude that Riggs was egregiously harmed from the trial court’s failure to
include a reasonable doubt instruction as to extraneous offense evidence in the charge
on punishment. His fifth issue is overruled.
CONCLUSION
Having overruled each issue on appeal, we affirm the trial court’s judgment.
TOM GRAY
Chief Justice
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Before Chief Justice Gray,
Justice Davis, and
Justice Scoggins
(Justice Davis concurring and dissenting)
Affirmed
Opinion delivered and filed December 10, 2015
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