George Saldana Martinez v. The State of Texas--Appeal from 25th Judicial District Court of Guadalupe County

MEMORANDUM OPINION
No. 04-02-00491-CR
George Salda a MARTINEZ,
Appellant
v.
The STATE of Texas,
Appellee
From the 2nd 25th Judicial District Court, Guadalupe County, Texas
Trial Court No. 01-1699-CR
Honorable Gus Strauss, Judge Presiding

Opinion by: Sandee Bryan Marion, Justice

Sitting: Sarah B. Duncan, Justice

Karen Angelini, Justice

Sandee Bryan Marion, Justice

Delivered and Filed: February 5, 2003

AFFIRMED

Defendant George Salda a Martinez was convicted of injury to a child under section 22.04 of the Texas Penal Code and sentenced to fifty years' imprisonment. In two issues on appeal, defendant argues that: (1) the trial court erred by submitting a defective jury charge and (2) his counsel was ineffective because he failed to object to the defective jury charge, failed to request a correct jury charge, and failed to object to the prosecutor's closing argument that referenced the defective jury charge. Because all issues of law are settled, our opinion only advises the parties of the court's decision and the basic reasons for it. See Tex. R. App. P. 47.4. We affirm.

Jury Charge Error

In his first issue, defendant claims the jury charge at issue parallels the one in Banks v. State, 819 S.W.2d 676 (Tex. App.--San Antonio 1991, pet. ref'd). Specifically, defendant contends that, as in Banks, he was charged with injuring a child under Texas Penal Code section 22.04 and because that crime is a result-oriented offense, it was erroneous for the trial court to include the full statutory definition of the culpable mental states in the jury charge. Defendant argues that instead the trial court should have applied only the culpable mental states to the result of the conduct, rather than the nature of the conduct. Although defendant concedes he did not object to the allegedly defective jury charge, he maintains that the jury charge error, in conjunction with the prosecutor's improper argument emphasizing the erroneous charge, amounted to egregious harm. Therefore, defendant argues that this Court should reverse and remand his case for a new trial, as we did in Banks.

To be convicted for injury to a child, the State must show that defendant intentionally, knowingly, recklessly, or with criminal negligence caused serious bodily injury to a child. Tex. Pen. Code Ann. 22.04 (Vernon Supp. 2002). Injury to a child is a result-oriented offense; therefore, the mental state criminalized in section 22.04 contemplates only the prohibited result. Haggins v. State, 785 S.W.2d 827, 828 (Tex. Crim. App. 1990); Alvarado v. State, 704 S.W.2d 36, 39 (Tex. Crim. App. 1985); Banks, 819 S.W.2d at 678. Therefore, it is error not to limit the definitions of culpable mental states in result-oriented offenses to the result of the accused's action. Ventroy v. State, 917 S.W.2d 419, 423 (Tex. App.--San Antonio 1996, pet. ref'd) (citing Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994)).

Because section 22.04 criminalizes a result-oriented offense, the trial court was required to limit culpable mental states in the abstract portion and the application portion of the jury charge to the result of defendant's conduct. However, the full statutory definitions of the culpable mental states, as provided in section 6.03 of the Texas Penal Code, were given to the jury. See Tex. Pen. Code. Ann 6.03 (Vernon 1994). Because the trial court did not limit the definitions of the culpable mental states, we hold there was error in the jury charge. See Ventroy, 917 S.W.2d at 423; see Banks, 819 S.W.2d at 678-79.

However, finding the error only begins our inquiry. Cook, 884 S.W.2d at 491. The definitions in the charge must be examined in the context in which they appear and are not to be read selectively. Turner v. State, 805 S.W.2d 423, 430-31 (Tex. Crim. App. 1991). We must also review the evidence and the record as a whole to determine if there was actual, rather than theoretical harm. Cook, 884 S.W.2d at 491-92. When, as here, jury charge error is not the subject of a proper objection, the appellant has the burden of demonstrating egregious harm. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984). Therefore, appellant must assert the error was "fundamental" and will obtain a reversal only if the error is so egregious that he has been deprived of a fair and impartial trial. Id. The actual degree of harm must be determined in light of the entire jury charge, the state of the evidence, including contested issues and the weight of probative evidence, the argument of counsel and any other relevant information revealed by the record as a whole. Id.

To argue that egregious error exists in this case, defendant relies on our opinion in Banks. In Banks, this court held that the error in the jury charge caused egregious harm because the abstract portion of the charge as well as the application paragraphs failed to limit the culpable mental states, and these errors were compounded when the prosecutor told the jury that the "intent element goes to the conduct, not the intent to cause bodily injury." Banks, 819 S.W.2d at 679-80. However, Banks is distinguishable from this case for several reasons. First, in this case, unlike in Banks, the full statutory definitions of "intentionally," "knowingly," "recklessly," and "criminal negligence" given in the abstract portions of defendant's charge were properly limited by the application paragraph. Second, in this case, the prosecutor's closing arguments did not leave the jury with the impression that it could convict defendant based only on his intention to engage in conduct. In fact, the prosecutor pointed out to the jury that to find defendant guilty it must find that he intentionally or knowingly engaged in the prohibited conduct and that he intentionally and knowingly caused serious bodily injury to his child. Therefore, viewing the jury argument in its entirety, we conclude that the unobjected-to argument, taken in context, did not call upon the jury to convict defendant merely because he intended to engage in conduct that caused injury to a child without finding that he specifically intended an injury to result. Accordingly, we overrule defendant's first issue.

Ineffective Assistance of Counsel

In his second issue, defendant contends his constitutional rights were violated because he did not receive effective assistance of counsel during his trial. Defendant complains that his counsel was ineffective because he failed to object to the defective jury charge, failed to request a correct jury charge, and failed to object to the prosecutor's closing argument that referenced the defective jury charge. We evaluate the effectiveness of counsel under the standard enunciated in Strickland v. Washington, 466 U.S. 668 (1984). See Dickerson v. State, 87 S.W.3d 632, 637 (Tex. App.--San Antonio 2002, no pet.). Here, defendant has not pointed to any other inactions by his counsel resulting in ineffective assistance; therefore, his claims are based solely on the defects in the jury charge. However, we hold the error in the charge did not result in egregious harm depriving him of a fair and impartial trial. Because any harm associated with the defective charge was not egregious, defendant has failed to establish that any alleged ineffective assistance prejudiced him to such a degree that he was deprived of a fair trial. Accordingly, we overrule defendant's second issue.

Based on the foregoing reasons, we affirm the trial court's judgment.

Sandee Bryan Marion, Justice

DO NOT PUBLISH