Luis Alfredo Servin v. State ( 2019 )

Fourth Court of Appeals
San Antonio, Texas
OPINION
No. 04-16-00671-CR
Luis Alfredo SERVIN,
Appellant
v.
The STATE of Texas,
Appellee
From the 226th Judicial District Court, Bexar County, Texas
Trial Court No. 2015CR5175
Honorable Sid L. Harle, Judge Presiding
Opinion by: Liza A. Rodriguez, Justice
Sitting: Rebeca C. Martinez, Justice
Patricia O. Alvarez, Justice
Liza A. Rodriguez, Justice
Delivered and Filed: April 24, 2019
AFFIRMED
Luis Alfredo Servin was convicted by a jury of two counts of aggravated robbery. On
appeal, Servin contends the jury charge failed to link the appropriate mens rea to its respective
conduct element resulting in egregious harm. We affirm the trial court’s judgment.
BACKGROUND
Servin was indicted for two counts of aggravated robbery. The two complainants were
Robert “Bob” and Betty Gilland.
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The Gillands, who were both over sixty-five years old, testified Betty woke Bob around
4:00 a.m. because she saw a bright light in the house. As Betty followed Bob down the hallway,
they were confronted by two individuals. Bob testified one of the individuals was holding a bright
light and a long gun to which the light was possibly taped. Bob testified he could only see the
barrel of the gun because of the light. Betty saw the bright light but did not see the gun. Both
testified they were ordered to lie down on the floor. Bob testified the individual said he would
shoot them if they did not get down. On cross-examination, Bob admitted the statement he gave
the lead detective did not refer to the individual saying he would shoot them, but Bob testified the
individual made the statement. Bob was subsequently ordered to assist one of the individuals in
locating the Gillands’ guns which were in a rack under their bed. Both Bob and Betty detailed the
items the individuals stole from their home.
Although Bob initially testified he did not did not believe he felt scared, he later stated he
was in fear for Betty and that they were both in serious danger from the minute the individuals
entered their home. Bob further testified, “Anybody that orders you in your own home, it’s
threatening.” Betty testified she felt threatened and was afraid the individuals might cause her
serious bodily injury.
The finger of a latex glove was recovered from the Gillands’ home by the area where their
television was removed from the wall. It was stipulated at trial that Servin’s DNA was on the
finger of the glove.
In his videotaped interview, Servin admitted breaking into the Gillands’ home; however,
he believed no one was home when he broke into the house because he knocked on the door and
no one answered.
After hearing the evidence, the jury convicted Servin of both counts of aggravated robbery.
Servin appeals.
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DISCUSSION
In his brief, Servin contends the jury charge failed to link the appropriate mens rea to its
respective conduct element which was erroneous and violated his due process rights and his right
to a unanimous verdict. Acknowledging no objection was made to the charge, Servin asserts he
was egregiously harmed by the charge error. The State concedes the jury charge was erroneous;
however, the State asserts the record does not establish egregious harm.
A. Standard of Review
“[W]e review alleged charge error by considering two questions: (1) whether error existed
in the charge; and (2) whether sufficient harm resulted from the error to compel reversal.” Ngo v.
State, 175 S.W.3d 738, 744 (Tex. Crim. App. 2005). Because Servin did not object to the charge
error about which he complains on appeal, “reversal is required only if the error was fundamental
in the sense that it was so egregious and created such harm that the defendant was deprived of a
fair and impartial trial.” Villarreal v. State, 453 S.W.3d 429, 433 (Tex. Crim. App. 2015). “Charge
error is egregiously harmful 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 to meet, and such a determination must be borne out by the trial record.” Id. (internal
quotation omitted). “In examining the record to determine whether charge error has resulted in
egregious harm to a defendant, we consider (1) the entirety of the jury charge, (2) the state of the
evidence, including the contested issues and weight of probative evidence, (3) the arguments of
counsel, and (4) any other relevant information revealed by the trial record as a whole.” Id.
B. Aggravated Robbery
As submitted in the jury charge, a person commits the offense of robbery if, in the course
of committing theft, and with intent to obtain or maintain control of the property, he intentionally
or knowingly threatens or places another in fear of imminent bodily injury or death. See TEX.
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PENAL CODE ANN. § 29.02(a)(2). A person commits aggravated robbery if the person commits
robbery and he: (1) uses or exhibits a deadly weapon; or (2) threatens or places a person 65 years
of age or older in fear of imminent bodily injury or death. See § 29.03(a)(2), (3)(A).
C. Charge Error
“A ‘conduct element’ is basically that element of the offense that makes the defendant’s
conduct proscribable.” Fields v. State, 966 S.W.2d 736, 739 (Tex. App.—San Antonio 1998),
rev’d on other grounds, 1 S.W.3d 687 (Tex. Crim. App. 1999). “The Texas Penal Code identifies
three ‘conduct elements’ that may be implicated in a given crime: (1) the nature of the conduct;
(2) the result of the conduct; and (3) the circumstances surrounding the conduct.” Id.; see also
Herrera v. State, 527 S.W.3d 675, 678 (Tex. App.—Houston [14th Dist.] 2017, pet. ref’d) (same).
In Fields, this court recognized that aggravated robbery by threat contains all three conduct
elements, reasoning: “The State must prove that the defendant caused or placed another in fear of
bodily injury (a result of his conduct) and that he unlawfully appropriated property (the nature of
his conduct), and the robbery itself is committed in the course of the commission of a theft
(circumstances surrounding the conduct).” 966 S.W.2d at 739. Subsequent cases, however, have
recognized that the “threatens or places another in fear of bodily injury” element of the offense
contains both a nature of the conduct element (threatens) and a result of the conduct element
(places another in fear). See Garfias v. State, 424 S.W.3d 54, 60-61 (Tex. Crim. App. 2014);
Gutierrez v. State, 446 S.W.3d 36, 40-41 & n.5 (Tex. App.—Waco 2014, pet. ref’d). Although
Fields did not make this distinction, the distinction did not affect this court’s analysis because we
recognized all three conduct elements were implicated. 966 S.W.2d at 739. And, we recognized
that when all three conduct elements are implicated, the charge must “limit the definitions in the
jury charge to the conduct element or elements of the offense to which they apply.” Id.; see also
Herrera, 527 S.W.3d at 679 (noting charge must “instruct the jury as to which elements of the
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charged offense each defined mental state, and each conduct element, applies”). In other words,
the charge must link the element of the charged offense; i.e., “places another in fear,” with the
culpable mental state for that conduct element, i.e., a person acts intentionally with respect to the
result of his conduct when it is his conscious objective or desire to cause the result, and a person
acts knowingly with respect to the result of his conduct when he is aware that his conduct is
reasonably certain to cause the result.
In this case, the abstract portion of the jury charge properly included the definitions for the
mental states of intentionally and knowingly. However, because the charge failed to instruct the
jury as to which mental states and conduct elements applied to each element of the offense, error
existed in the charge.
D. Egregious Harm
Servin contends the “threaten” and “place in fear” elements of the offense were hotly
contested by the defense. We disagree with his reading of the record. Although defense counsel
challenged Bob’s credibility regarding whether the individual stated he would shoot them if they
did not get down, Bob testified the individuals’ presence in his home at 4:00 a.m. was threatening
and he was in fear of bodily injury. Betty also testified she felt threatened and was in fear of bodily
injury. Finally, the lead detective testified a threat does not have to be verbal.
With regard to the entirety of the jury charge, “the facts, as applied to the law, in the
application paragraphs pointed the jury to the appropriate portion of the definitions.” Patrick v.
State, 906 S.W.3d 481, 493 (Tex. Crim. App. 1995). For example, the application paragraph
applying the law of aggravated robbery of a person 65 years of age or older to the offense against
Bob asked the jury to determine if Servin did “intentionally or knowingly threaten or place Robert
Gilland, a person 65 years of age or older[,] in fear of imminent bodily injury or death.” Referring
back to the definitions of the culpable mental states and applying them to the facts, it would be
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fairly obvious to a jury that “threaten” relates to the nature of Servin’s conduct, while “places in
fear” relates to the result of Servin’s conduct.
In his closing argument, defense counsel relied on Servin’s statement during his interview
that he believed no one was home to assert Servin only intended to commit the offense of burglary.
Defense counsel stated, “the intent was to commit a burglary of an empty house and it turned
unintentionally into something else.” However, defense counsel then conceded the detective’s
testimony supported a conviction for robbery, stating, “I think at worst you could say robbery,
possibly, because that’s what the detective was saying, that’s what she was saying.” As the State
noted in its final closing argument, if the jury believed Servin was guilty of robbery, he necessarily
was guilty of aggravated robbery because it was undisputed that the Gillands were over the age of
65.
Although Servin’s brief quotes portions of the State’s closing argument where the State
references mental states, the State was responding to defense counsel’s focus at trial on Servin’s
statement that he did not believe anyone was home by arguing Servin’s actions when confronting
the Gillands were intentional and knowing. For example, the State argued, “Maybe they didn’t
expect Betty and Bob to come out of the doorway, but when they did, his behavior is what you’re
looking at. Okay? He didn’t turn and run away, he didn’t go Whuh-Oh, he confronted them, put
a gun in Bob’s face and said get on the ground. Those actions are intentional, those actions are
knowing. And that is what makes it a robbery.”
We conclude the mental states and conduct elements applicable to each element of the
offense was not the focus at trial or during closing argument. Accordingly, the charge error was
not egregiously harmful because it did not “affect[] the very basis of the case, deprive[] [Servin]
of a valuable right, or vitally affect[] a defensive theory.” Villarreal, 453 S.W.3d at 433; see also
Herrera, 527 S.W.3d at 679-80 (holding no egregious harm shown when “[t]he issue of appellant’s
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mental state was not at all a focus of the trial or the closing arguments”); Fields, 966 S.W.2d at
740 (holding no egregious error when contested issues at trial did not include mental states or to
which conduct element they applied).
CONCLUSION
The trial court’s judgment is affirmed.
Liza A. Rodriguez, Justice
PUBLISH
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