Court of Appeals of Texas, Seventh District, Amarillo
Appeal from the 19th District Court McLennan County, Texas
Trial Court No. 2016-1261-C1 (Counts I, II & III);
Honorable Ralph T. Strother, Presiding
QUINN, C.J., and PIRTLE and PARKER, JJ.
PATRICK A. PIRTLE JUSTICE
Danny Wayne Alcoser, appeals three convictions related to a
domestic violence incident. Following pleas of not guilty to
all three counts of the indictment and a plea of true to an
enhancement allegation, a jury convicted him on all counts
and assessed punishment as follows:
Violence, a third degree felony enhanced to a
second degree felony
TEX. PENAL CODE ANN. §§ 22.01(b)(2),
12.42(a) (WEST 2019)
Twenty years and a fine of $10, 000
Endangering a Child, a state jail felony
TEX. PENAL CODE ANN. § 22.041(c), (f) (West
Two years and a fine of $10, 000
Interference with Emergency Request for Assistance,
a Class A misdemeanor
TEX. PENAL CODE ANN. § 42.062(a) (West 2017)
One year in county jail and a fine of $4, 000
sentences were ordered to run concurrently. By four issues,
he challenges all three of his convictions. By his first
issue, he contends the trial court abused its discretion in
denying a mistrial. By issues two and three, he argues he was
egregiously harmed when the trial court failed to properly
instruct the jury regarding the applicable culpable mental
states and when it failed to properly instruct the jury on
the law relating to self-defense by not including an
application paragraph and by omitting the definition of
"reasonable belief." By his fourth and final issue,
he maintains the evidence is factually insufficient to
support his conviction. For the reasons that follow, we
reverse and remand each conviction.
and the complainant met when she was assigned as his
daughter's Child Protective Services caseworker. When
that case was closed, the complainant and Appellant began an
on-again, off-again romantic relationship.
complainant has two children, T.W. and J.A., the younger
being Appellant's biological child. T.W., a special needs
child, was six years old at the time of the incident
resulting in Appellant's convictions and J.A.,
Appellant's child, was less than a year old. In May 2016,
the complainant and Appellant were having relationship issues
and were attending court-ordered counseling. The court order
required them to live separately. During that period of
separation, Appellant was staying with a former girlfriend.
day in question, the complainant was taking a shower and her
two children were in the home. Appellant claimed he believed
no one was home and used his key to enter and gather his
clothes from the master bedroom closet. The complainant heard
someone and exited the shower. When she realized Appellant
was removing his clothes from the closet, she tried to
persuade him to stay and they engaged in a physical
altercation. According to Appellant's version of the
events, he thought no one was home and was suddenly struck on
the back of the head causing him to instinctively grab the
person assaulting him without realizing it was the
he was defending himself from the complainant, Appellant
placed one of his hands over her esophagus, causing her
breathing to be impeded. With a firm hold around her neck, he
guided her backwards from the closet through the master
bedroom and toward the master bathroom.
complainant testified that she fought back and was able to
free herself from Appellant's grasp. She ran to the
living room as Appellant gathered his belongings and left.
She then locked the door behind him. When Appellant realized
he had left his cigarettes inside, he asked to re-enter the
home. The complainant instructed him to remain outside while
she brought him his cigarettes. Instead, he entered the
living room and the fighting resumed.
tried to separate them and was pushed away by Appellant. At
that time, the complainant held up her cell phone and
threatened to call the police. Appellant responded with a
threat and grabbed her phone and damaged it. The complainant
then instructed T.W. to run out of the house and he complied.
She grabbed her infant and tried to leave through the back
door; however, according to the complainant, Appellant
followed her with a baseball bat. She testified that he
threatened to kill her. She turned and ran toward the front
door but veered off toward the master bathroom to try to exit
through a window. She was unable to completely close the
bathroom door when Appellant pushed it open, causing her to
fall into the bathtub while still holding her infant. The
complainant hit her head but managed to shield the infant
from any injury. Appellant left the premises and the
complainant went to a neighbor's house where she asked
them to call 911 because her cell phone was inoperable.
John Tucker responded to an assault-in-progress call at the
complainant's home. He testified he was familiar with the
address due to prior encounters with the parties. When he
arrived, the complainant gave the officer her version of the
incident. Sergeant Tucker decided not to interview T.W. in
order to avoid any further trauma to the child. At trial,
Sergeant Tucker testified that the complainant was visibly
upset, and photographs taken at the scene showed red marks
around her neck.
was arrested a few weeks later. While he was in jail, the
complainant visited him, and they also corresponded.
Eventually, the complainant signed an affidavit of
non-prosecution seeking dismissal of the charges against
Appellant. She testified she still loved Appellant and did
not want him prosecuted. Nevertheless, the case proceeded to
the State presented its case-in-chief, Appellant chose not to
testify. However, after both sides had rested and closed, he
changed his mind. The trial court re-opened the evidence and
admonished Appellant of the consequences of testifying.
Against counsel's advice, Appellant testified he was
defending himself against the complainant who initially
assaulted him by surprise while he was gathering his clothes.
According to Appellant, "[n]obody was supposed to be
there." "I started getting hit in the back of the
head." He explained that his physical reaction toward
the complainant was "a response to - - to being
hit." He also testified that the complainant damaged her
own cell phone and fabricated her version of the events to
avoid losing custody of her children because she was under
investigation by Child Protective Services. He also sought
admission into evidence of recorded phone calls which he
claimed would reveal the truth.
his testimony, Appellant admitted having a drug and alcohol
problem in the past. He also testified that he suffers from
anxiety and cannot always afford his medication. He admitted
relinquishing his parental rights to other children so that
the complainant would not lose custody of her two children.
Appellant's self-defense theory portrayed the complainant
as the provocateur. He insisted that she fabricated the story
about falling in the bathtub. He denied using a baseball bat
to intimidate her during the altercation and testified he
never threatened to kill her. In his opinion, the
complainant's machinations benefitted her with Child
Protective Services because, if it was believed she was the
instigator, she risked losing custody of her children.
testimony in the guilt or innocence phase of trial concluded,
the court held a charge conference. The charge included three
counts-one for each offense-and a paragraph on self-defense.
It also included definitions of various culpable mental
states and other standard instructions. When the trial court
asked for objections to the charge, counsel for Appellant
stated, "[n]o objections or requests." After
closing arguments, the jury deliberated and then returned
guilty verdicts on all three counts.
address Appellant's issues in a logical rather than
sequential order. First, we begin with issues two and three
by which he raises various errors relating to the jury
charge. Specifically, by issue two, he maintains the trial
court erred in failing to properly define the culpable mental
states applicable to each separate offense and by failing to
properly tailor them to the offenses with which he was
charged. By his third issue, Appellant contends the trial
court erred in omitting an application paragraph as well as
the definition of "reasonable belief" in the
instruction on self-defense. Appellant maintains the
cumulative effect of the numerous errors caused him egregious
harm. We agree.
36.14 of the Texas Code of Criminal Procedure mandates that
the trial court "shall deliver to the jury . .
. a written charge distinctly setting forth the law
applicable to the case . . . ." Tex. Code Crim.
Proc. Ann. art. 36.14 (West 2007). (Emphasis added).
"The purpose of the jury charge is to inform the jury of
the applicable law and guide them in its application to the
case." Beltran De La Torre v. State, 583 S.W.3d
613, 617 (Tex. Crim. App. 2019) (quoting Hutch v.
State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996)).
Therefore, a proper charge consists of an abstract statement
of the law applicable to the case and such application
paragraph or paragraphs as are necessary to apply that law to
the facts. Ramirez v. State, 336 S.W.3d 846, 851
(Tex. App.-Amarillo 2011, pet. ref'd). The abstract
paragraph of a jury charge serves as a guide or glossary to
help the jury understand the meaning of concepts and terms
used in the application paragraph of the charge. Arteaga
v. State, 521 S.W.3d 329, 338 (Tex. Crim. App. 2017).
The failure to give an abstract instruction is reversible
error when such an instruction is necessary to correct or
complete the jury's understanding of concepts or terms in
the application part of the charge. Malik v. State,
953 S.W.2d 234, 235 (Tex. Crim. App. 1997).
charge to the jury, "[a] trial judge must maintain
neutrality in providing such information and guidance."
Beltran De La Torre, 583 S.W.2d at 617 (citing
Brown v. State, 122 S.W.2d 794, 798 (Tex. Crim. App.
2003)). The jury charge should avoid any special allusion to
a particular fact in evidence, "as the jury might
construe this as judicial endorsement or imprimatur."
Id. Furthermore, an instruction is improper if it
"impermissibly guide[s]" a jury's consideration
of the evidence or "improperly focuses the jury" on
certain evidence because such an instruction would amount to
an impermissible comment on the weight of the evidence.
Brown, 122 S.W.2d at 802. To accomplish these
purposes, article 36.14 provides that a jury charge: (1) must
be in writing; (2) must "distinctly set forth the law
applicable to the case"; (3) cannot "express any
opinion as to the weight of the evidence"; (4) may
"not sum up the testimony"; and (5) cannot
"discuss the facts or us[e] any argument in [the]
charge calculated to arouse the sympathy or excite the
passions of the jury." Tex. Code Crim. Proc. Ann. art.
review of claimed jury-charge error involves a two-step
process. See Cortez v. State, 469 S.W.3d 593, 598
(Tex. Crim. App. 2015). See also Almanza v. State,
686 S.W.2d 157, 171 (Tex. Crim. App. 1985). A reviewing court
must initially determine whether charge error occurred.
Price v. State, 457 S.W.3d 437, 440 (Tex. Crim. App.
2015). If an appellate court finds charge error, the next
step requires the reviewing court to analyze that error for
harm. Kirsch v. State, 357 S.W.3d 645, 649 (Tex.
Crim. App. 2012).
error requires reversal when a proper objection has been made
and a reviewing court finds "some harm," i.e.,
error that is calculated to injure the rights of the
defendant. Barrios v. State, 283 S.W.3d 348, 350
(Tex. Crim. App. 2009). Where, as here, the alleged
error was not preserved by objection, Appellant can prevail
only if he was egregiously harmed by an erroneous charge.
Arteaga, 521 S.W.3d at 338. Jury charge error is
egregious if it affects the very basis of the case, deprives
the defendant of a valuable right, or vitally affects a
defensive theory. Id. Egregious harm is a "high
and difficult standard which must be borne out by the trial
record." Reeves v. State, 420 S.W.3d 812, 816
(Tex. Crim. App. 2013).
reviewing harm resulting from charge error, an appellate
court must determine harm in light of (1) the jury
instructions, (2) the state of the evidence, (3) the
arguments of counsel, and (4) any other relevant information
revealed by the record of the trial as a whole. See Anaya
v. State, 381 S.W.3d 660, 665 (Tex. App.-Amarillo 2012,
pet. ref'd) (citing Almanza, 686 S.W.2d at 174).
Also, there is no burden of proof or persuasion in a harm
analysis conducted under Almanza. See
Anaya, 381 S.W.3d at 665.