                         COURT OF APPEALS
                          SECOND DISTRICT OF TEXAS
                               FORT WORTH

                              NO. 02-13-00312-CR


CLINTON DRAKE DAUGHERTY                                              APPELLANT

                                        V.

THE STATE OF TEXAS                                                         STATE


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            FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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                         MEMORANDUM OPINION 1

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      Appellant Clinton Drake Daugherty appeals from his ten-year sentence for

robbery and fifty-year sentence for aggravated assault. We affirm the trial court’s

judgment.




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       See Tex. R. App. P. 47.4.
                               I. BACKGROUND

      Appellant was charged by indictment with one count of aggravated robbery

causing serious bodily injury to Brandon Barks (count one), one count of

aggravated assault causing serious bodily injury to Victoria Brown (count two),

one count of aggravated assault causing serious bodily injury to Barks (count

three), and one count of aggravated assault with a deadly weapon on Brown

(count four).   The indictment also contained two enhancement paragraphs

alleging that Appellant was previously convicted of the felony offenses of

engaging in organized criminal activity and evading arrest with a prior conviction.

The indicted offenses arose from a fight that broke out at Barks’s home, which

involved Appellant, Barks, Brown, and Victoria Dixson, and resulted in Appellant

stealing money from Barks and causing permanent disfigurement to Brown’s lips.

      The State later amended count one to allege robbery causing bodily injury

to Barks. Before trial, the State announced it would only proceed on counts one

and two—the robbery of Barks and the aggravated assault of Brown—and that it

would not seek a deadly-weapon finding. 2       Appellant then pleaded guilty to

counts one and two, pleaded true to the enhancement paragraphs, and did not

waive his right to have a jury assess his punishment. See Tex. Code Crim. Proc.

Ann. art. 26.14 (West 2009). Both count one and count two as charged were

second-degree felonies enhanced to first-degree felonies subject to punishment


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       The State later dismissed the remaining two counts.


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by imprisonment “for life or for any term of not more than 99 years or less than 5

years.” Tex. Penal Code Ann. § 12.32(a) (West 2011); see also id. § 12.42(b)

(West Supp. 2013), §§ 22.02, 29.02 (West 2011).

      At the punishment hearing, the amended indictment was read to the jury

and Appellant pleaded guilty to counts one and two and true to the enhancement

paragraphs.   The State introduced evidence of the underlying offenses and

evidence that Appellant was prone to violence and was a member of a white-

supremacy gang. Appellant proffered witnesses who testified that Appellant was

not a member of a white-supremacy gang, was a good person, and deserved

leniency. The trial court charged the jury that Appellant had pleaded guilty to

counts one and two and had pleaded true to the enhancement paragraphs and

instructed the jury to “find the defendant guilty as charged in Counts One and

Two of the indictment and to find the enhancement paragraphs true, and to

assess his punishment as herein provided.” See Holland v. State, 761 S.W.2d

307, 313 (Tex. Crim. App. 1988) (explaining propriety of trial court charging jury

to return verdict of guilty and to decide only issue of punishment after defendant

pleads guilty to felony offense before the jury), cert. denied, 489 U.S. 1091

(1989).

      During its punishment deliberations, the jury sent out a note asking, “Are

the sentences served concurrently?” See generally Tex. Code Crim. Proc. Ann.

art. 36.27 (West 2006) (prescribing process by which jury may communicate with

trial court). The trial court proposed to answer the question “I cannot answer


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your question,” to which Appellant did not object. Thus, the written answer was

delivered to the jury. Later, the jury sent out a second note: “Please define

robbery. Who are considered victims in count two?” The trial court’s proposed

answer was: “One, ‘a person commits 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 bodily injury to another.’ Two, [t]he victim in

count two is Victoria Brown, as alleged in the indictment.” Appellant objected “as

to improper comment on the weight of the evidence [because] it’s not in the

original charge, and it would be an indication that would be improper to pursue

right now.” The trial court overruled Appellant’s objection and presumably sent

its written response to the jury. The jury assessed Appellant’s punishment at ten

years’ confinement for count one and fifty years’ confinement for count two. The

trial court sentenced Appellant accordingly and ordered the sentences to run

concurrently.

      Appellant filed a motion for new trial, which was overruled by operation of

law. See Tex. R. App. P. 21.8(c). Appellant now appeals and argues that the

trial court’s response to the jury’s second note was in error, which caused him

some harm.

                                 II. DISCUSSION

                  A. LAW REGARDING JURY-QUESTION ANSWERS

      In evaluating a jury-charge issue, we first determine whether error exists.

Kirsch v. State, 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). If error occurred,


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whether it was preserved determines the degree of harm required for reversal.

Id.   Error in jury instructions, if timely objected to in the trial court, requires

reversal if the error was “calculated to injure the rights of [the] defendant,” which

means no more than that there must be some harm to the accused from the

error. Tex. Code Crim. Proc. Ann. art. 36.19 (West 2006); see Reeves v. State,

No. PD-1711-12, 2013 WL 5221142, at *2 (Tex. Crim. App. Sept. 18, 2013)

(unanimous opinion).

       Answers given by a trial court in response to jury questions are considered

supplemental jury instructions; thus, the trial court must comply with the

requirements applicable to jury charges and, accordingly, may not express any

opinion as to the weight of the evidence or otherwise discuss the facts. See Tex.

Code Crim. Proc. Ann. art. 36.14 (West 2007), art. 36.16 (West 2006); Lucio v.

State, 353 S.W.3d 873, 875 (Tex. Crim. App. 2011). Although a trial court may

not single out a particular piece of evidence in its instructions to the jury, this rule

does not “necessarily apply” if the trial court is responding to a question

regarding a subject identified by the jury. Lucio, 353 S.W.3d at 877. Further, a

response that refers to the original jury charge does not equate to an additional

instruction. See Earnhart v. State, 582 S.W.2d 444, 450 (Tex. Crim. App. 1979).

                          B. ANSWER DEFINING ROBBERY

       Appellant first attacks the trial court’s response to the jury’s request for a

definition of robbery.    Appellant points to the indictment, which alleged only

knowingly and intentionally as the culpable mens rea, and asserts that the trial


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court’s definition of robbery, which included recklessly as a culpable mens rea,

was erroneous. This error, Appellant asserts, violated his statutory right to have

the jury assess his punishment for the charge to which he pleaded guilty. See

Tex. Code Crim. Proc. Ann. art. 26.14.

      Indeed, the indictment charged Appellant with “intentionally or knowingly”

causing bodily injury to Barks while in the course of committing theft of property.

But in responding to the jury’s general request for a definition of robbery, the trial

court gave the jury the definition of robbery exactly as set out in the penal code:

“[I]f, in the course of committing theft . . . and with intent to obtain or maintain

control of the property, he intentionally, knowingly, or recklessly causes bodily

injury to another.” Tex. Penal Code Ann. § 29.02(a)(1). Although the lesser

culpable mental state of recklessness was not alleged in the indictment,

Appellant’s guilty plea to the greater culpable mental states of intentional and

knowing necessarily included a like plea to the culpable mental state of

recklessness. See Patterson v. State, 46 S.W.3d 294, 303–04 (Tex. App.—Fort

Worth 2001, no pet.) (holding “[b]ecause the jury found that appellant knowingly

caused serious bodily injury to [the victims], it necessarily found that there was

sufficient proof to support a finding that she recklessly caused serious bodily

injury to them”); cf. Little v. State, 659 S.W.2d 425, 426 (Tex. Crim. App. 1983)

(holding jury charge on lesser-included offense with culpable mental state of

recklessness not error when greater offense alleged in indictment included only

culpable mental states of intentionally and knowingly).       Additionally, because


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Appellant’s guilt was not at issue, any definition of robbery was not “the law

applicable to the case” and, therefore, would not be governed by article 36.14.

See Tex. Code Crim. Proc. Ann. art. 36.14. The trial court’s response was not

erroneous. See Lucio, 353 S.W.3d at 877. We need not proceed to a harm

analysis. Kirsch, 357 S.W.3d at 649.

                          C. ANSWER SPECIFYING VICTIM

       Appellant next asserts that the trial court’s identification of Brown as the

victim in response to the jury’s question improperly emphasized certain evidence

and, thus, was erroneous. The State posits that the jury was confused regarding

the charged victim because “there were no application paragraphs to delineate

who was the victim in count one and two” and because “Appellant assaulted

multiple people the night of the offense, including two women . . . named

Victoria.”   Appellant concedes that “[t]he jury’s confusion [was] perfectly

understandable.”

       The trial court’s response merely referred the jury back to the indictment,

which had been read to the jury at the beginning of the punishment trial and

alleged that Brown was the victim. As recognized above, a communication from

the trial court in response to a jury question that merely refers the jury to the

original charge is not considered a supplemental instruction subject to the

dictates applicable to a jury charge.        See Earnhart, 582 S.W.2d at 450.

Therefore, the trial court’s response referring the jury to the indictment was not a

supplemental instruction and cannot be held to have impermissibly varied from


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articles 36.14 or 36.16. See Franklin v. State, 363 SW.2d 137, 138 (Tex. Crim.

App. 1962). Even if the response were considered a supplemental instruction, it

did not improperly comment on the weight of the evidence because the

identification of Brown as the victim in the indictment was “an objective

conclusion based on the record concerning a dispute among the jury.”           See

Green v. State, 912 S.W.2d 189, 193 (Tex. Crim. App. 1995), cert. denied, 516

U.S. 1021 (1996). Further, Appellant had pleaded guilty to assaulting Brown;

therefore, the identification of Brown as the victim was not a fact at issue for the

jury and did not impermissibly single out a particular piece of evidence regarding

a disputed fact.    See Lucio, 353 S.W.3d at 877 (“[T]he trial court did not

improperly comment on the weight of the evidence in its answer, which provided

a correct statement of the law without expressing any opinion as to the weight of

the evidence or assuming the existence of a disputed fact.” (emphasis added)).

In the absence of an erroneous instruction, we need not proceed to a harm

analysis. See Kirsch, 357 S.W.3d at 649.




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                                III. CONCLUSION

      Because the trial court did not err in its responses to the jury’s second

note, we overrule Appellant’s issue and affirm the trial court’s judgment.



                                                   PER CURIAM

PANEL: GABRIEL, MCCOY, and MEIER, JJ.

DO NOT PUBLISH
Tex. R. App. P. 47.2(b)

DELIVERED: March 20, 2014




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