Opinion
No. 01-08-00667-CR
Opinion issued April 9, 2009. DO NOT PUBLISH. TEX. R. APP. P. 47.4
On Appeal from County Criminal Court at Law No. 4 Harris County, Texas, Trial Court Cause No. 1506808.
Panel consists of Justices TAFT, BLAND, and SHARP.
MEMORANDUM OPINION
Boris Edilberto Perez was convicted of possession of a hoax bomb under Texas Penal Code Section 46.08(a)(1). See TEX. PENAL CODE ANN. § 46.08 (Vernon 2003). A jury assessed punishment at 228 days' confinement in the Harris County Jail and a fine of $2,000. Perez contends that the trial court erred in including, in an abstract paragraph of the jury charge, additional language from section 46.08 (a)(2), describing conduct for which Perez had not been charged. We affirm.
Background
On February 6, 2008, Perez, entered the Harris County Criminal Courthouse and proceeded to the security station. He placed several bags on an x-ray machine operated by Vanessa Davis. Davis became concerned by the number of bags and packages that Perez brought for inspection. While viewing the x-ray, she noticed several unusual items inside appellant's bags. The bags contained metallic objects, batteries, electronic devices, and tools, as well as a wire that connected to an empty can outside the bag. Davis feared that the bags contained either a bomb or the components to make a bomb. Davis called her supervisor, Yolanda Utley, to the scene and notified her of the possible threat of explosives. Utley examined the images of the bags, became alarmed, and called for assistance from the Harris County Constables. Utley turned the situation over to Officer C. Silguero, who examined the bags and believed that they contained a bomb. Officer Silguero promptly secured the area and called dispatch. Lieutenant W. Ruland, an expert in explosives, arrived and took control of the scene. He believed that the bags contained explosives and moved the bags behind a flood door to prevent any harm from possible detonation. Soon after, Deputy Constable T. Valdez arrived with his canine partner, both of whom are trained to detect explosives. When Valdez first looked at the bags, he thought they contained a bomb. However, when the dog searched the bags, he did not alert to the existence of explosives. Officers arrested Perez and charged him with possession of a hoax bomb.Discussion
To determine whether the jury charge contains reversible error, we first decide whether error exists. Middleton v. State, 125 S.W.3d 450, 453 (Tex.Crim.App. 2003). If the court finds that there was a charging error, it must then determine whether a proper timely objection was made at trial. If a timely objection was made at trial, then the court should reverse if the error is "calculated to injure the rights of defendant [appellant]." If a proper objection was not made at the time of the trial, then the appellant must show that the error is fundamental, and the judgment will only be reversed if the error was so egregious and created such harm that the appellant "has not had a fair and impartial trial." Almanza v. State, 686 S.W.2d 157, 171 (Tex.Crim.App. 1985). Perez contends that the trial court erred by including language from Texas Penal Code Section 46.08(a)(2) in the abstract part of the jury charge when the information in his case charged him only with violating section 46.08(a)(1). TEX. PENAL CODE ANN. § 46.08 (Vernon 2003). Section 46.08 states:(a) A person commits an offense if the person knowingly manufactures, sells, purchases, transports, or possesses a hoax bomb with intent to use the hoax bomb to:
(1) make another believe that the hoax bomb is an explosive or incendiary device; or
(2) cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.Id. In this case, the information charging Perez stated that he did "knowingly possess a hoax bomb with intent to use the hoax bomb to make another believe that the hoax bomb was an explosive or incendiary device." The application paragraph of the jury charge instructed the jury that Perez should be found guilty if the jury believed that Perez knowingly possessed a hoax bomb with the intent to use the hoax bomb to make another believe that the hoax bomb was an explosive or incendiary device. The jury charge also contained, in the abstract paragraph, a general description of the offense that included the following:
A person commits the offense of possession of a hoax bomb if the person knowingly possesses a hoax bomb with intent to use the hoax bomb to make another believe that the hoax bomb is an explosive or incendiary device or cause alarm or reaction of any type by an official of a public safety agency or volunteer agency organized to deal with emergencies.The fifth paragraph of the instructions included a definition of the term "hoax bomb" that described it as "a device that reasonably appears to be an explosive or incendiary device, or by its design causes alarm or reaction of any type by an official of a public safety agency or a volunteer agency organized to deal with emergencies." Perez contends that the language in the jury charge erroneously expanded the offense stated in the information. The information charged Perez with knowingly possessing a hoax bomb with the intent to make others believe it was an explosive or incendiary device. Perez asserts that the jury charge expanded the description of the offense by including the intent "to cause alarm or a reaction from public safety officials" in the abstract paragraphs. As a result, Perez contends that the charge erroneously allowed the prosecutors to argue, and the jury to convict him, under a theory that was not charged in the information. A trial court's charge must fully instruct the jury on the law applicable to the case and apply that law to the facts adduced at trial. Gary v. State, 152 S.W.3d 125, 127 (Tex.Crim.App. 2004). This direct application is accomplished through the application paragraph of the jury charge. The application paragraph of a jury charge is the part that authorizes conviction. McFarland v. State, 928 S.W.2d 482, 515 (Tex.Crim.App. 1996), overruled on other grounds by Mosley v. State, 983 S.W.2d 249 (Tex.Crim.App. 1998). An abstract charge on a theory of law which is not applied to the facts is not sufficient to bring that theory before the jury. Campbell v. State, 910 S.W.2d 475, 477 (Tex.Crim.App. 1995). Therefore, in the abstract paragraphs, a trial court can include a more general description of the offense. Toler v. State 546 S.W.2d 290, 293-94 (Tex.Crim.App. 1977) (citing Martinez v. State 252 S.W.2d 186 (1952)). In Toler, the court found no error when the jury charge defined the offense charged in the abstract paragraphs and then made a direct application of the pertinent law to the facts in the particular case in the application paragraph. Id. Here, the abstract paragraphs of the jury charge set forth the general law including a broad description of the offense and a definition of the term "hoax bomb". But the application paragraph correctly instructed the jury to find Perez guilty only if they believed that he had "knowingly posses[ed] a hoax bomb with intent to use the hoax bomb to make another believe that the hoax bomb was an explosive or incendiary device." These were the exact words that were used in the information. Consequently, this paragraph was strictly bound to the same theory that the appellant was charged with in the information. We hold that there was no error in the jury charge because the theory under which the jury was instructed to find the appellant guilty was exactly the same as charged in the information. Even though the abstract paragraph included broader language in describing the offense and defining the term "hoax bomb," the application paragraph specifically restricted the jury's considerations and instructed them to find appellant guilty only on the grounds alleged in the information. Furthermore, defense counsel did not object to the jury charge at trial and therefore did not properly preserve error. We therefore evaluate Perez's claim under Almanza's egregious harm standard. In examining the record to determine whether the charge error is fundamental, we consider the entirety of the charge, the evidence, the arguments of counsel, and any other relevant information revealed in the record of the trial. Almanza, 686 S.W.2d at 171. Even if we had found the jury charge to be an error, reversal would be unwarranted. Almanza sets out the factors to be considered in determining whether a charge error is egregious: the entirety of the charge, the evidence, and the arguments of counsel. Id. Based on these factors, we find that defendant failed to prove that he suffered a fundamental error. First, we examine the charge in its entirety. When the application paragraph correctly instructs the jury, a superfluous abstract definition is not harmful. Medina v. State, 7 S.W.3d 633, 640 (Tex.Crim.App. 1999) (citing Plata v. State, 926 S.W.2d 300, 302-03 (Tex.Crim.App. 1996)); Grady v. State, 614 S.W.2d 830, 831 (Tex. Crim App. 1981) (citing Toler, 546 S.W.2d at 293-94). Because the application paragraph correctly instructed the jury to limit its consideration to the allegations presented in the information, the trial court did not commit fundamental error by including in the other paragraphs a general description of the offense and a definition of the term "hoax bomb." Second, we consider the evidentiary record. Almanza, 686 S.W2d at 171. The evidence from the record is sufficient for a rational juror to find appellant guilty of possession of a hoax bomb. Perez testified that he was knowledgeable about technology. A person who is knowledgeable in technology would know that people who saw items like the ones Perez had in his bags, arranged in the way that they were arranged, would likely believe that they were either an explosive device or the components of an explosive device. Furthermore, the evidence shows that Perez brought the bags into the court house, that he knew what their contents were, and that because he had been to the courthouse before, he knew that he would have to put them through the x-ray scanners for inspection. Moreover, several witnesses testified as to their belief that appellant's bags contained a bomb or the components of a bomb. After reviewing the record, we conclude that sufficient evidence exists to support a jury finding that Perez was guilty of knowingly possessing a hoax bomb with intent to use the hoax bomb to make another believe that the hoax bomb was an explosive or incendiary device. Finally, we consider the arguments of counsel. Almanza, 686 S.W.2d at 171. As part of his argument that he was egregiously harmed, Perez contends that the prosecution spent a large amount of time arguing the intent of "causing alarm" and therefore, established an alternative means for conviction. The State responds that it did not focus its argument on the reaction or alarm, but rather that it elicited witnesses' testimony regarding their alarm only to show that appellant's intent to make others believe that his bags contained a bomb was realized. We agree. Even though the State mentioned the alternative theory, 2 it did not focus its case on this element. The prosecution referred to the alarm element only to show that appellant's bag fit the definition of a hoax bomb and that the people who encountered appellant's bags believed that they were dealing with a bomb. For example, in its opening statement, the State told the jury that ". . . [Davis] saw what she thought to be bomb components. At this time, she is scared." Furthermore, the State referred to the people handling appellant's bags and said: "They are all scared. They see a bomb." These statements use the witnesses' alarm to prove their belief that they were threatened by a bomb. Finally, the State did not focus its closing argument on proving the alternative intent of causing alarm of a public safety agency or official. While the State briefly mentioned that intent, they did so only to show that Perez's bags satisfied the definition of the term "hoax bomb." As a whole, the State's closing argument focused on Perez's intent to make people believe that his bags were an explosive and how the reaction of the people who encountered the bags proved that his intent was realized. Therefore, this last Almanza element also weighs for the State.