Another Appellate Victory! Sherman & Plano, TX Criminal Defense Lawyer (Part 4)

*3 In crafting a definition, however, it is important to remember the function of the definitions and instructions in a charge. The function of the abstract paragraphs is to provide a glossary to help the jury understand the meaning of concepts and terms used in the application paragraphs of the charge. See Plata v. State, 926 S.W.2d 300, 302 (Tex.Crim.App.1996). The application paragraph in the instant case read:

If you believe from the evidence beyond a reasonable doubt that [appellant] … did then and there intentionally or knowingly threaten to harm [the victim] by an unlawful act, to wit: by sending … threatening text messages in retaliation for and account of the service or status of [the victim] who had reported the occurrence of a crime, to wit: Assault …

The trial court’s definition gave the statutory definition of the word unlawful. The added language from the harassment statute, which is a specific offense to that charged, was not necessary to further define an unlawful act, and was improperly included in the charge. Therefore, we conclude the court’s definition was erroneous.FN4 FN4. Our conclusion is limited to the facts of this case and the narrow issue remanded for our consideration.

Having concluded that the definition was erroneous, we now consider whether appellant suffered harm, and any other relevant information revealed by the record of the trial as a whole.” Almanza, 686 S.W.2d at 171. Appellant objected to the complained-of definition as follows:

“… actually, my objection is under Texas law. That law refers to a completely different crime under the statute of harassment as a crime I did not voir dire on. It’s a crime that I presented no evidence on. I did not prepare to defend against that particular crime and I am not prepared to address it, of course, at this late date. And again, 1 believe it introduces into the charge an additional burden on me as the attorney that wasn’t available when this trial started.”

We deem this objection sufficient to preserve appellant’s complaint that the definition is an incorrect statement of the law. Therefore, we consider whether appellant suffered some harm.

Generally, reversible error occurs in the giving of an abstract instruction only when the instruction is an incorrect or misleading statement of the law that the jury must understand in order to implement the commands of the application paragraph. Plata, 926 S.W.2d at 302. But this is precisely what occurred here. The record reflects that appellant assaulted the victim, Megan Lawson, and she told him she was contacting the police. After appellant left the scene, Lawson began receiving threatening text messages from appellant’s telephone number. Lawson continued to receive such messages after she went to the police station. Whether appellant sent the messages and whether the messages were actually conveying a threat was the crux of the State’s case and the appellant’s defense. The unlawful act was the essence of the case. Having the language from the harassment statute in the jury charge was confusing and could lead the jury to believe appellant was guilty of retaliation if it believed appellant harassed the complainant. Therefore, under these circumstances, we cannot conclude that the complained-of definition did not cause appellant to suffer some-harm. Appellant’s issue is sustained.

*4 We reverse the trial court’s judgment and remand for further proceedings consistent with this opinion.

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