BRADLEY JAMES MESSNER, Appellant v. THE STATE OF TEXAS, Appellee

AFFIRMED; Opinion Filed November 30, 2007.
 
 
 
In The
Court of Appeals
Fifth District of Texas at Dallas
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No. 05-07-00273-CR
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BRADLEY JAMES MESSNER, Appellant
V.
THE STATE OF TEXAS, Appellee
.............................................................
On Appeal from the County Court at Law No. 4
Collin County, Texas
Trial Court Cause No. 001-80152-06
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OPINION
Before Justices Moseley, Lang, and Mazzant
Opinion By Justice Lang
                                                          
        Bradley James Messner appeals his conviction by a jury for interference with an emergency telephone call. The jury assessed his punishment at 180 days' confinement. In a single issue, appellant contends he was egregiously harmed by the omission from the jury charge of the “emergency” element of section 46.062 of the Texas Penal Code. For the reasons below, we decide appellant's issue against him. The trial court's judgment is affirmed.
I. FACTUAL AND PROCEDURAL BACKGROUND
 
        Appellant and the complainant, Alison Thomas, met in November 2004 and began dating in December 2004. Thomas, who was divorced, owned her own home, where she lived with her two children. In January 2005, Thomas became pregnant with appellant's child. In March 2005, appellant asked Thomas to marry him and she accepted his proposal. Approximately one month later, appellant moved into Thomas's residence.
        At trial, Thomas testified that although appellant was “attentive” and “charming” when their relationship began, by March 2005 the relationship had begun to sour. Thomas and appellant began having arguments about finances. Thomas testified appellant would argue with her in front of her children, and when Thomas asked appellant to stop, he would escalate the argument. Thomas and appellant also argued about intimacy issues. According to Thomas, appellant accused her of having an affair and became verbally and emotionally abusive toward her. The arguments eventually progressed to physical confrontation. Thomas testified appellant never hit her, but when she would walk away from an argument, appellant would “get in [her] face,” then grab and squeeze her arms, which sometimes left bruising on her arms. Thomas said appellant told her that he had been physically abusive to his former wife, and Thomas grew to be frightened of appellant.
        Thomas broke off her engagement with appellant and repeatedly told him to move out of her home. She testified appellant kept reminding her that they were having a baby together, and she agreed to let him stay, “hoping that he would change.” Eventually, Thomas testified, she reached an agreement with appellant that he would move out of her home after the baby was born. However, after the baby's birth, appellant did not move out.
        On the morning of November 3, 2005, when the baby was approximately six weeks old, Thomas decided to run some errands with the baby. She dropped off her older children at school, showered and dressed, put on some makeup, and fixed her hair. According to Thomas, appellant, who was home on his day off, became enraged and accused Thomas of going out to have an affair. Thomas again told appellant to move out. When he refused, she told him that if he did not “pick up his things and leave” her home, she would “be forced to call for help.” Thomas testified she felt threatened by appellant and “afraid of him” at that point, because “he was so enraged” and was refusing to leave.
        Thomas went into the master bedroom, placed the baby on the center of the bed, and walked around the bed to get to the cordless telephone. Thomas testified appellant stepped between her and the phone, grabbed her arms, and yelled in her face. According to Thomas, when she managed to pick up the phone, appellant released one of her arms and attempted to grab the phone from her. As they struggled, the cordless phone fell to the floor and the battery became detached from the back of the phone.
        Thomas testified she attempted to leave the master bedroom and get to the kitchen phone, but appellant “bear hugged” her from behind and squeezed her so tightly she could barely move her arms and could not breathe. With the weight of appellant on her back, Thomas struggled “to get anywhere close to being able to call for help.” Thomas testified she believed she was in “imminent danger.”
        According to Thomas, appellant yelled, “I'm so sorry, I'm so sorry. I'm so scared, I'm so scared. Just hold me. I don't want to get into trouble. If you call the police, I'll get into trouble.” Thomas knew appellant was on probation for violating a protective order. Thomas testified appellant promised to let her go and stop hurting her if she agreed not to call 9-1-1. Because she could not breathe, Thomas agreed.
        Thomas retrieved the baby from the master bedroom and began nursing. According to Thomas, appellant “continued the verbal onslaught” at that time. Thomas told appellant that if he would not leave, she would. Thomas testified appellant responded that she was “more than welcome to leave,” but could not take the baby with her. She testified that as she tried to make her way through the utility room to the garage with the baby, appellant blocked her path and grabbed at her arms, nearly causing her to drop the baby. According to Thomas, appellant then told her that if she was leaving, he was going with her. Appellant released his grip on Thomas's arms to get his coat, cigarettes and phone. Thomas, shaking, carried the baby to her minivan. She testified that as she strapped the baby into a car seat, appellant got into the front passenger seat of the minivan and refused to leave when she asked him to. Appellant demanded Thomas give him her car keys, but she refused. Thomas testified she grabbed her cell phone from the seat of the minivan and ran into the alley to call 9-1-1. She testified she was trying to call 9-1-1 not because she was “just mad” at appellant, but rather because she was “petrified” appellant was going to hurt her and the baby.
        According to Thomas, appellant grabbed his coat, called Thomas a “bitch,” and drove off in his own car while Thomas spoke to the 9-1-1 operator. Thomas testified she was sobbing and emotionally “distraught” when a police officer arrived approximately ten minutes later. At the officer's request, Thomas wrote a statement of what had happened. Thomas testified that she wrote in her statement that she originally called police because of “a financial argument and an argument over the arrangements of where [appellant] was living.” She testified that she might have left some things out of the statement because she was upset when she wrote it.
        Officer Duane Calder of the Frisco Police Department testified he was dispatched to Thomas's home at 10:28 a.m. on November 3, 2005. When Calder arrived at Thomas's home, he found Thomas “physically upset.” Calder testified Thomas stated she had been in an argument with appellant involving finances and living arrangements. Thomas told Calder that when she tried to call the police, appellant restrained her “in a bear hug type grasp.” Calder confirmed the bedroom telephone appeared broken. Calder testified that he attempted to take crime scene photos, but his camera did not work. He did not recall seeing any bruises on Thomas. Calder testified he took a witness statement from Thomas and completed a written police report. Based on Thomas's statement and his own observations, Calder made the determination to charge appellant with interference with an emergency telephone call and Class C assault.
        Thomas testified that later on that same day, November 3, 2005, she agreed to let appellant return to her house and sleep next to her in the same bed. In addition, Thomas and her children accompanied appellant on a trip to visit appellant's parents in Michigan in December 2005. On January 13, 2006, appellant was arrested pursuant to the charge of interference with an emergency telephone call. Thomas “put up the bond” to secure appellant's release from jail.
        Detective Leah Apple of the Frisco Police Department testified she was assigned to investigate the case against appellant based on the events on November 3, 2005. Apple testified she reviewed the tape of Thomas's 9-1-1 call and the statements of Thomas and Calder before deciding to issue a warrant for appellant's arrest. Apple testified that paperwork from the City of Frisco Municipal Court indicated the Class C assault charge against appellant was dismissed on November 29, 2006. She testified she was not responsible for dropping that charge and did not know why it had been dismissed.
        Appellant pleaded not guilty and did not testify at trial. After hearing the evidence, the jury was charged in relevant part:
The Applicable Law
 
        Our law provides that a person commits an offense if he intentionally or knowingly interferes with or prevents a person's ability to place an emergency telephone call.
        . . . .
APPLICATION OF THE LAW
 
        Now, therefore, if you find from the evidence beyond a reasonable doubt that Bradley James Messner, on or about the 3rd day of November, 2005, in Collin County, Texas, did then and there intentionally or knowingly interfere with Alison Thomas's ability to place an emergency phone call by grabbing the arms or chest of Alison Thomas, then you will find Mr. Messner “Guilty” as charged.
 
Appellant made no objection to the jury charge. Following the parties' closing arguments, the jury found appellant guilty of the offense of interference with an emergency telephone call. At the punishment phase of trial, appellant stipulated to his prior conviction record for assault and violation of a protective order. In addition, appellant's employer testified that it was his opinion that appellant would be a good candidate for probation. Punishment was assessed by the jury at 180 days' confinement.
        A motion for new trial was filed by appellant and, following a hearing, was overruled. Appellant timely perfected this appeal.
II. OMISSION FROM COURT'S CHARGE
 
        In his sole issue, while acknowledging he did not preserve error by timely objection, appellant contends he was egregiously harmed by the omission from the court's charge of what he refers to as the “'emergency' element” of section 46.062 of the Texas Penal Code.
        The State asserts the jury charge did not omit an element of the charged offense, but rather omitted a definition of that element. Further, the State asserts, the absence of the statutory definition of “emergency” did not result in egregious harm to appellant.
A. Standard of Review
 
        Because appellant did not object in the trial court to the purported charge error, in order to secure reversal on appeal, appellant must show the error was so egregious and created such harm that he did not receive a fair and impartial trial. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1985); Batiste v. State, 73 S.W.3d 402, 407 (Tex. App.-Dallas 2002, no pet.). Errors that result in egregious harm are those that 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. Druery v. State, 225 S.W.3d 491, 504 (Tex. Crim. App. 2007); 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 revealed by the record as a whole. Stuhler v. State, 218 S.W.3d 706, 720 (Tex. Crim. App. 2007); Batiste, 73 S.W.3d at 407; Lane v. State, 957 S.W.2d 584, 587 (Tex. App.-Dallas 1997, pet. ref'd). Egregious harm is difficult to prove and is determined on a case-by-case basis. Batiste, 73 S.W.3d at 407.
B. Applicable Law
 
        The function of the jury charge is to instruct the jury on the law applicable to the case. Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007) (providing that judge shall deliver to jury “a written charge distinctly setting forth the law applicable to the case”); Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995). The charge consists of the abstract portion and the application paragraph or paragraphs. Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim. App.1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App. 1997). The abstract portion “serve[s] as a kind of glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge.” Id. The application paragraph applies the law to the facts, and asks an ultimate question of the jury about whether the defendant is guilty. Id. at 302-03.
         The jury charge must contain an accurate statement of the law and must set out all the essential elements of the offense. See Dinkins, 894 S.W.2d at 339. “[W]hen the trial court omits required elements of an offense from the charge or from the application paragraph of the charge, a conviction is fatally defective.” Morris v. State, 786 S.W.2d 451, 456 (Tex. App.-Dallas 1990, pet. ref'd).
        Further, the trial court must define in the jury charge any legal phrase that a jury must necessarily use in properly resolving the issues, and provide the statutory definition if available. Nejnaoui v. State, 44 S.W.3d 111, 119 (Tex. App.-Houston [14th Dist.] 2001, pet. ref'd) (citing Nguyen v. State, 811 S.W.2d 165, 167 (Tex. App.-Houston [1st Dist.] 1991, pet. ref'd)); see also Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986) (statutorily defined word or phrase must be included in charge as part of law applicable to the case). “[W]hen the statutory definition is not included in the charge, it is assumed the jury would consider the commonly understood meaning in its deliberations.” Nejnaoui, 44 S.W.3d at 120 (quoting Olveda v. State, 650 S.W.2d 408, 409 (Tex. Crim. App. 1983)). The failure to give an abstract instruction is reversible “only when such an instruction is necessary to correct or complete understanding of concepts or terms in the application part of the charge.” Plata, 926 S.W.2d at 302.
        Section 42.062 of the Texas Penal Code provides in relevant part:
        (a) An individual commits an offense if the individual knowingly prevents or interferes with another individual's ability to place an emergency telephone call or to request assistance in an emergency from a law enforcement agency, medical facility, or other agency or entity the primary purpose of which is to provide for the safety of individuals.
        . . . .
        (d) In this section, “emergency” means a condition or circumstance in which any individual is or is reasonably believed by the individual making a telephone call to be in fear of imminent assault or in which property is or is reasonably believed by the individual making the telephone call to be in imminent danger of damage or destruction.
 
Tex. Pen. Code Ann. § 42.062 (Vernon Supp. 2007).
 
C. Application of Law to Facts
 
        Appellant asserts that because the jury charge “utterly fails to address the element of 'emergency' in the abstract or in the application portion of the charge,” the law given the jury “is wholly inadequate to support a conviction.” Appellant contends Thomas “was not in any fear when the call was placed-hence no emergency.” Appellant argues he was egregiously harmed by the alleged omission from the charge because “[h]ad the jury known that more was required than attempting a phone call-that proof of an emergency was needed, an acquittal would, in all reasonable probability, have resulted.”
        The State asserts, “Contrary to the indications in Appellant's brief, the error in the jury charge was the absence of a definition, not the omission of an element of the offense.” The State contends the absence of the statutory definition of emergency did not cause egregious harm to appellant because the common understanding of “emergency phone call” closely resembles the statutory definition. Moreover, the State argues, the common understanding of “emergency phone call” is actually a more restrictive definition than the statutory definition. Finally, the State asserts, “Any differences between the definitions did not matter because given the evidence, defense theory of the case, and argument of counsel, there was no appreciable risk of the jury convicting Appellant based on an urgency that was not also an emergency under the statutory definition.”
        The abstract portion of the jury charge in this case stated that a person commits an offense “if he intentionally or knowingly interferes with or prevents a person's ability to place an emergency telephone call.” The application paragraph of the charge provided that the jury was to find appellant guilty if they determined from the evidence beyond a reasonable doubt that he intentionally or knowingly interfered with Thomas's “ability to place an emergency phone call” by grabbing her arms or chest. By the charge given, a conviction was not authorized without requiring the jury to find all of the elements of the offense charged. See Rohlfing v. State, 612 S.W.2d 598, 602 (Tex. Crim. App. [Panel Op.] 1981) (although jury charge did not contain statutory definition of element, element of offense was not omitted where charge did not authorize conviction without finding all elements of offense). Accordingly, we conclude the jury charge in this case did not omit the element of “emergency.”
        However, because the State acknowledges charge error, we proceed with analysis of whether there is egregious harm. In its appellate brief, the State says “the charge should have instructed the jury” as to the statutory definition of “emergency” provided in section 42.062(d). See Tex. Pen. Code Ann. § 42.062(d); see also Nejnaoui, 44 S.W.3d at 119 (trial court must define any legal phrase jury must necessarily use in resolving issues and provide statutory definition if available). However, the State contends there is no egregious harm. Accordingly, assuming, without deciding, that the trial court's omission of the statutory definition of “emergency” was error, we examine whether such omission created “egregious” harm so as to require a reversal. See Nejnaoui, 44 S.W.3d at 120.
        An issue similar to the one before us was addressed by the Texas Court of Criminal Appeals in Rohlfing. See Rohlfing, 612 S.W.2d at 602. The defendant in Rohlfing was convicted of aggravated robbery based on a statute that provided, “A person commits the offense of aggravated robbery if, in the course of committing theft, and with intent to obtain or maintain control of the property, he intentionally, knowingly or recklessly causes serious bodily injury to another, or uses or exhibits a deadly weapon.” Id. On appeal, the defendant complained the trial court's charge was fundamentally defective for failure to define the phrase “in the course of committing theft,” as alleged in the indictment. Id. The defendant made no objection to the charge and did not request such a definition be included. Id.
        The court of criminal appeals noted that the phrase “in the course of committing theft” was defined in the Texas Penal Code and “because of this, by necessary implication, it takes on a specific legal meaning.” Id. at 603. However, observing that the record reflected that the offense of robbery occurred during the commission of a theft, the court stated, “We fail to see, under this record, how the jury could have been misled by the failure of the charge to define the phrase 'in the course of committing theft.'” Id. The court reasoned:
While, as a logical matter, we cannot conclude that “in the course of committing theft,” being defined in [the Texas Penal Code], is a phrase used only in its common meaning and therefore always unnecessary to define, we note that of the three circumstances defined as “in the course of committing theft” under [the Texas Penal Code], only the second applies in the instant case and that definition, viz; conduct that occurs during the commission of theft coincides exactly with the common meaning of “in the course of committing theft.”
                                                
Id. The court concluded that although “in the course of committing theft” should have been defined, failure to do so, under the record before them, did not render the charge fundamentally defective, because the charge given was sufficient in itself to protect the rights of the defendant and adequately set forth the law applicable to the case. Id.
        Here, the State argues “the common-sense definition [of emergency] very much resembles the statutory definition.” The State asserts that the dictionary defines “emergency,” when used as an adjective, as “for use in case of sudden necessity.” Further, citing section 42.061 of the Texas Penal Code, the State argues that “[l]ay people understand that not just any necessity justifies a 9-1-1 call.” See Tex. Pen. Code Ann. § 42.061 (Vernon 2003) (calling 9-1-1 and remaining silent or harassing the operator when there is not an emergency constitutes a misdemeanor). In addition, the State argues the definition of “emergency” was not important to the jury's resolution of the fact issues in this case.
        We agree with the State that the statutory definition of “emergency” in section 42.062(d) is “much like the common meaning of the word.” See Tex. Pen. Code Ann. § 42.062(d) (emergency means “a condition or circumstance in which any individual is or is reasonably believed . . . to be in fear of imminent assault”); Webster's Ninth New Collegiate Dictionary 407 (1985) (emergency defined as “an unforeseen combination of circumstances or the resulting state that calls for immediate action”). Thus, the statutory definition of “emergency” was not “necessary to correct or complete understanding of concepts or terms in the application part of the charge” in this case. See Nejnaoui, 44 S.W.3d at 120. “[W]hen the statutory definition is not included in the charge, it is assumed the jury would consider the commonly understood meaning in its deliberations.” Id. (quoting Olveda, 650 S.W.2d at 409).
        Moreover, nothing in the record indicates the jury's verdict was based on facts that would not constitute an “emergency” under the statutory definition of section 42.062(d). Appellant contends, “There was no physical evidence to corroborate the assault and the police report did not mention that [Thomas] was in fear. Based upon the arguments of counsel, it is clear that the 'emergency' was the contested issue.” However, the record shows Thomas testified she felt “threatened” by and “afraid of” appellant and was “petrified” appellant was going to hurt her and the baby. That testimony was not inconsistent with her statement to police that she and appellant had been arguing about finances and living arrangements. Therefore, the jury's determination of whether appellant committed “interference with an emergency telephone call” turned primarily on the credibility of Thomas's testimony. The inclusion of the definition of “emergency” in the charge would not have assisted in resolving any issues respecting the credibility of Thomas's testimony. Accordingly, appellant has not shown that the addition of the omitted statutory definition of “emergency” would have affected the jury's consideration of any of the issues in this case. On this record, and in view of the charge submitted, we conclude that even if the trial court erred by omitting from the jury charge the statutory definition of “emergency,” appellant has not shown such error was so harmful as to deny him a fair and impartial trial. See Almanza, 686 S.W.2d at 171 (where appellant does not object to purported charge error, reversal on appeal requires appellant to show error was so egregious and created such harm that he did not receive fair and impartial trial). We decide appellant's issue against him.
III. CONCLUSION
 
        We conclude the jury charge in this case did not omit the “emergency” element of section 46.062 of the Texas Penal Code. Further, we conclude appellant has not shown he was egregiously harmed by the omission from the jury charge of the statutory definition of “emergency.” Appellant's sole issue is decided against him. The trial court's judgment is affirmed.
                                                                  
 
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                                                                  DOUGLAS S. LANG
                                                                  JUSTICE        
 
Do Not Publish
Tex. R. App. P. 47
070273f.u05