ROBERT VICENT BATTAGLIA, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRM; Opinion issued November 19, 2007
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-06-00798-CR
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ROBERT VICENT BATTAGLIA, Appellant
V.
THE STATE OF TEXAS, Appellee
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On Appeal from the Criminal District Court No. 2
Dallas County, Texas
Trial Court Cause No. F04-15049-VI
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OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Mazzant
        Robert Vincent Battaglia appeals his conviction for indecency with a child. In three issues, he claims the jury charge contained an impermissible definition of reasonable doubt, that it failed to limit the definition of the culpable mental state, and the trial court improperly instructed the jury regarding the availability of parole and good time. We affirm the trial court's judgment.
        
Discussion
        Appellant pleaded not guilty to the offense of indecency with a child by contact. See Tex. Penal Code Ann. § 21.11 (Vernon 2003). He was convicted by the jury and sentenced to five years in prison.
        Appellant's issues concern alleged errors in either the guilt/innocence or punishment jury charges. He concedes he did not object at trial to any of these alleged errors. When an appellant alleges jury charge error on appeal, our first task is to determine whether error actually exists in the charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996); Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985) (op. on reh'g). Only when there is jury charge error do we determine if the error caused sufficient harm to warrant reversal. Hutch, 922 S.W.2d at 170-71; Almanza, 686 S.W.2d at 171.
        The standard for determining whether sufficient harm resulted from the charging error to require reversal depends on whether the appellant objected. See Olivas v. State, 202 S.W.3d 137, 144 (Tex. Crim. App. 2006). Since appellant did not object to any of the jury charge errors he alleges in this appeal, we review the record to determine whether the error was so egregious and created such harm that appellant did not receive a fair and impartial trial. Almanza, 686 S.W.2d at 171; Batiste v. State, 73 S.W.3d 402, 407 (Tex. App.-Dallas 2002, no pet.). To constitute “egregious harm,” an error must affect the very basis of the case, deprive appellant of a valuable right, vitally affect a defensive theory, or make the case for punishment clearly and significantly more persuasive. Batiste, 73 S.W.3d at 407. We assess the actual degree of harm in light of the entire jury charge, the state of the evidence, including the contested issues and weight of the probative evidence, the argument of counsel, and any other relevant information in the record. Id. Egregious harm is difficult to prove and is determined on a case-by-case basis. Id.
        In his first issue, appellant contends the trial court erred by not limiting the definitions of “intentionally” and “knowingly” in the jury charge to focus on the nature of his conduct and that this error was sufficiently harmful to require reversal. In its charge during the guilt/innocence phase of the trial, the court defined the words “intentionally” and “knowingly”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.
 
 
 
        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.
 
See Tex. Penal Code Ann. § 6.03(a)-(b) (Vernon 2003).
        There are three “conduct elements” that can be involved in an offense: (1) the nature of the conduct; (2) the result of the conduct; and (3) the circumstances surrounding the conduct. See id.; McQueen v. State, 781 S.W.2d 600, 603 (Tex. Crim. App. 1989). An offense may contain one or more of these “conduct elements,” which alone or in combination form the overall behavior that the legislature intended to criminalize, and it is those “conduct elements” to which a culpable mental state must apply. Id. A trial court errs in failing to limit the definitions of the culpable mental states to the conduct element or elements of the offense to which they apply. See Patrick v. State, 906 S.W.2d 481, 492 (Tex. Crim. App.1995); Cook v. State, 884 S.W.2d 485, 491 (Tex. Crim. App. 1994); Ash v. State, 930 S.W.2d 192, 194 (Tex. App.-Dallas 1996, no pet.).
        Appellant argues indecency with a child by contact is a “nature of conduct” offense and that the “result of conduct” language should have been omitted from the definitions of intentionally and knowingly. Two courts of appeals have held that indecency with a child by contact is a “nature of conduct” offense. See Underwood v. State, 176 S.W.3d 635, 642 (Tex. App.-El Paso 2005, pet. ref'd) (citing Washington v. State, 930 S.W.2d 695, 699 (Tex.App.-El Paso 1996, no pet.)); Rodriguez v. State, 24 S.W.3d 499, 502 (Tex. App.-Corpus Christi 2000, pet. ref'd).
        In the present, case, however, we need not determine whether the trial court erred in defining intentionally and knowingly because, even if the court erred, the error did not cause appellant egregious harm. In the application paragraph of the charge, the jury was instructed that it should convict appellant of indecency with a child by contact if it found beyond a reasonable doubt that he did
 
intentionally or knowingly engage in sexual contact with C.L., hereinafter called complainant, a child younger than 17 years and not then the spouse of the defendant, by contact between the hand of the defendant and the genitals of the complainant, with the intent to arouse or gratify the sexual desire of the defendant. . . .
 
The application paragraph therefore limited the applicable mental states to the appropriate conduct element. See Washington, 930 S.W.2d at 700. Accordingly, we conclude that any error by the trial court in failing to limit the mental state definitions to the appropriate conduct elements did not deprive appellant of a fair and impartial trial. See Rodriguez, 24 S.W.3d at 502-03. We overrule his first issue.
        In his second issue, appellant argues the trial court erred by providing the following instruction on reasonable doubt in the jury charge: “[I]t is not required that the prosecution prove guilt beyond all possible doubt; it is required that the prosecution's proof excludes all 'reasonable doubt' concerning the defendant's guilt.”
        Appellant argues the above instruction amounts to a definition of reasonable doubt because it states what reasonable doubt “is not” and follows the sentence assigning the burden to the State to prove guilt beyond a reasonable doubt. Appellant further argues that since it defines “reasonable doubt,” the challenged language violates the holding in Paulson v. State, 28 S.W.3d 570 (Tex. Crim. App. 2000) that “the better practice is to give no definition of reasonable doubt at all to the jury.”
        As the State points out, however, we rejected this argument in O'Canas v. State, 140 S.W.3d 695, 702 (Tex. App.-2003, pet. ref'd). Moreover, in Woods v. State, 152 S.W.3d 105, 115 (Tex. Crim. App. 2004), the court of criminal appeals held that a trial court does not abuse its discretion by including the complained-of language. We decide appellant's second issue against him.
        In his third issue, appellant contends the trial court erred in instructing the jury in the punishment charge regarding parole eligibility and good conduct time. See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon 2006). Appellant claims the court erred because, having been convicted of indecency with a child, he is statutorily ineligible for parole and good conduct time credit. See Tex. Gov't Code Ann. § 508.149(a)(5) (Vernon 2004). Appellant also argues that the code of criminal procedure requires the trial court to present a written charge to the jury that distinctly sets forth the law applicable to the case, see Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007), and because the instruction did not apply to him, the court should not have included it in its charge.
        The article 37.07 parole and good time instruction provided by the trial court is mandatory in all non-capital felonies listed under code of criminal procedure article 42.12, section 3g(a). See Tex. Code Crim. Proc. Ann. art. 37.07, § 4(a) (Vernon 2006). Indecency with a child is one of the offenses listed under article 42.12, section 3g(a). Id. art. 42.12, § 3g(a)(1)(C). Although the parole eligibility and good conduct time instruction may at first appear to conflict with the court's duty to properly set forth the law applicable to the case since appellant is ineligible for parole and good conduct time, the instruction refers to parole and good conduct time only as possibilities, not certainties. In addition, the charge provided to the jury in this case includes language admonishing the jury not to consider how parole law or good conduct time may apply to appellant and informing the jury he may serve his entire sentence without early release. See Cagle v. State, 23 S.W.3d 590, 594 (Tex. App.-Fort Worth 2000, pet. ref'd). We therefore conclude the court did not err in including the mandated parole and good conduct time instruction. Furthermore, assuming the trial court erred, appellant was not deprived of a fair and impartial trial because nothing in the record suggests the jury discussed, considered, or tried to apply what they were told about good conduct time and parole. See Luquis v. State, 72 S.W.3d 355, 367 (Tex. Crim. App. 2002). We overrule appellant's third issue.
        We affirm the trial court's judgment.
 
                                                          
                                                          AMOS L. MAZZANT
                                                          JUSTICE
 
Do Not Publish
Tex. R. App. P. 47
060798F.U05