Phillip Boyd Cashion v. State ( 2019 )

In The
Court of Appeals
Sixth Appellate District of Texas at Texarkana
No. 06-19-00087-CR
PHILLIP BOYD CASHION, Appellant
V.
THE STATE OF TEXAS, Appellee
On Appeal from the 6th District Court
Lamar County, Texas
Trial Court No. 27916
Before Morriss, C.J., Burgess and Stevens, JJ.
Memorandum Opinion by Chief Justice Morriss
MEMORANDUM OPINION
Responding to a report of a prowler, Lamar County deputies found Phillip Boyd Cashion
near some trees at the back of the complainant’s property. Though Cashion claimed he was
retrieving wire he had purchased, it was later found that the wire found in the bed of his truck had
been clipped from an electrical pole. Cashion was arrested for theft of aluminum, and a search of
his vehicle led to the discovery of methamphetamine and a “meth” pipe. In the case appealed
here, 1 Cashion was convicted by a jury of theft of aluminum valued at less than $20,000.00 2 and
sentenced to eighteen months’ confinement in state jail.
In a consolidated brief addressing both cases, Cashion contends that he was egregiously
harmed by the trial court’s erroneous jury charge and that, in its closing argument, the State made
an improper comment on his failure to testify. Because (1) there was no error in the jury charge
and (2) Cashion preserved no jury-argument complaint, we affirm the trial court’s judgment.
(1) There Was No Error in the Jury Charge
Cashion complains that the abstract portion of the jury charge omitted the “without the
effective consent of the owner” element of theft. 3 Although Cashion acknowledges that the
application paragraph of the jury charge did address the effective-consent element, he argues that
1
Cashion was also convicted of possession of methamphetamine in an amount less than one gram. See TEX. HEALTH
& SAFETY CODE ANN. § 481.115(b). That conviction has also been appealed to this Court and is addressed in an
opinion released the same date as this opinion in our case number 06-19-00088-CR.
2
See TEX. PENAL CODE ANN. § 31.03(e)(4)(F).
3
A person commits theft if he unlawfully appropriates property with intent to deprive the owner of property. TEX.
PENAL CODE ANN. § 31.03(a). “Appropriation of property is unlawful if . . . it is without the owner’s effective
consent.” TEX. PENAL CODE ANN. § 31.03(b)(1).
2
the variance between the abstract portion and the application paragraph would have been confusing
to the jury, causing harm.
Our review of alleged jury charge error employs a two-step process. See Abdnor v. State,
871 S.W.2d 726, 731 (Tex. Crim. App. 1994). “Initially, we determine whether error occurred
and then evaluate whether sufficient harm resulted from the error to require reversal.” Wilson v.
State, 391 S.W.3d 131, 138 (Tex. App.—Texarkana 2012, no pet.) (citing Abdnor, 871 S.W.2d at
731–32).
“[T]he jury is the exclusive judge of the facts, but it is bound to receive the law from the
court and be governed thereby.” TEX. CODE CRIM. PROC. ANN. art. 36.13. “A trial court must
submit a charge setting forth the ‘law applicable to the case.’” Lee v. State, 415 S.W.3d 915, 917
(Tex. App.—Texarkana 2013, pet. ref’d) (quoting TEX. CODE CRIM. PROC. ANN. art. 36.14). “The
purpose of the jury charge . . . is to inform the jury of the applicable law and guide them in its
application. It is not the function of the charge merely to avoid misleading or confusing the jury:
it is the function of the charge to lead and prevent confusion.” Id. (citations omitted) (quoting
Delgado v. State, 235 S.W.3d 244, 249 (Tex. Crim. App. 2007)). “In examining the charge for
possible error, reviewing courts ‘must examine the charge as a whole instead of a series of isolated
and unrelated statements.’” Vasquez v. State, 389 S.W.3d 361, 366 (Tex. Crim. App. 2012)
(quoting Dinkins v. State, 894 S.W.2d 330, 339 (Tex. Crim. App. 1995)).
The abstract portion of the jury charge in this case stated, “Our law provides that a person
commits the offense of theft of material if he unlawfully appropriates property with intent to
deprive the owner of the property and the value of the property stolen is less than $20,000 and the
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property stolen is aluminum.” It also included certain statutory definitions, including the statutory
definition of “effective consent.” See TEX. PENAL CODE ANN. § 1.07(a)(19) (Supp.).
The application paragraph of the charge authorized Cashion’s conviction only if the jury
found beyond a reasonable doubt that Cashion “unlawfully appropriate[d] by acquiring or
otherwise exercising control over property, to-wit: aluminum wire of the value of less than
$20,000.00 from . . . the owner thereof, without the effective consent of the owner, and with the
intent to deprive the owner of the property.”
In Vasquez, the Texas Court of Criminal Appeals explained:
The application paragraph is that portion of the jury charge that applies the pertinent
penal law, abstract definitions, and general legal principles to the particular facts
and the indictment allegations. Because that paragraph specifies the factual
circumstances under which the jury should convict or acquit, it is the “heart and
soul” of the jury charge.
Vasquez, 389 S.W.3d at 366–67 (citations omitted). Thus, a jury is “authorized to convict based
on the application portion of a charge; an abstract charge or a legal theory does not bring that
theory before the jury unless the theory is applied to the facts.” Martin v. State, 252 S.W.3d 809,
814 (Tex. App.—Texarkana 2008, pet. dism’d) (citing McFarland v. State, 928 S.W.2d 482, 515
(Tex. Crim. App. 1996) (per curiam), overruled on other grounds by Mosley v. State, 983 S.W.2d
249, 263 (Tex. Crim. App. 1998); Campbell v. State, 910 S.W.2d 475, 477 (Tex. Crim. App.
1995)).
“A charge is adequate if it contains an application paragraph that authorizes a conviction
under conditions specified by other paragraphs of the charge to which the application paragraph
necessarily and unambiguously refers.” Id. (citing Plata v. State, 926 S.W.2d 300, 302 (Tex. Crim.
App. 1996), overruled on other grounds by Malik v. State, 953 S.W.2d 234 (Tex. Crim. App.
4
1997)). “If the application paragraph of a jury charge does not incorporate a theory recited only
in the abstract portion of the charge, a jury cannot convict on that theory.” Id. (citing Hughes v.
State, 897 S.W.2d 285, 297 (Tex. Crim. App. 1994); Mallard v. State, 162 S.W.3d 325, 334 (Tex.
App.—Fort Worth 2005, pet. ref’d)).
In this case, although the abstract portion omitted that the appropriation of the property
must be without the effective consent of the owner, the application paragraph tracked the
allegations in the indictment and authorized a conviction only if the jury found beyond a reasonable
doubt that Cashion’s appropriation of the aluminum was without the effective consent of the
owner. We have previously held that, even though the abstract portion of a charge may be
questionable, there is no jury charge error when “the application portion essentially tracks the
indictment.” Id. at 815. Considering the jury charge as a whole, we find that it was not erroneous.
Further, “[w]here the application paragraph correctly instructs the jury, an error in the
abstract instruction is not egregious.” 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)). Consequently, any
error in the abstract portion cannot be shown to have caused Cashion egregious harm. 4 See Martin,
252 S.W.3d at 815.
We overrule Cashion’s jury-charge issue.
4
The level of harm necessary to require reversal due to jury charge error is dependent on whether the appellant properly
objected to the error. Abdnor, 871 S.W.2d at 732. Here, because Cashion did not object to the charge, we will not
reverse unless the record shows the error resulted in egregious harm, see Ngo v. State, 175 S.W.3d 738, 743–44 (Tex.
Crim. App. 2005) (citing Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. on reh’g)), such that he
did not receive a fair and impartial trial. See Almanza, 686 S.W.2d at 171; Loun v. State, 273 S.W.3d 406, 416 (Tex.
App.—Texarkana 2008, no pet.). “Jury-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.” Stuhler v. State, 218 S.W.3d 706,
719 (Tex. Crim. App. 2007).
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(2) Cashion Preserved No Jury-Argument Complaint
Cashion also complains that, during its closing argument, the State commented twice that
he did not testify. Cashion argues that these comments violated his constitutional right against
self-incrimination under the United States and Texas Constitutions. However, Cashion did not
object to the State’s comments when they were made at trial and did not otherwise bring this
complaint to the trial court’s attention. The State argues that Cashion has not preserved this
complaint for our review. We agree.
Generally, to preserve an error for appellate review, the complaining party must bring the
complaint to the trial court’s attention by a timely request, objection, or motion; state the specific
grounds for his complaint (unless apparent from the context); and obtain a ruling from the trial
court, or a refusal to rule. TEX. R. APP. P. 33.1(a). Even most constitutional errors are forfeited if
not raised in the trial court first. Jimenez v. State, 32 S.W.3d 233, 235 (Tex. Crim. App. 2000). A
complaint of improper jury argument is also subject to the preservation requirement. See
Hernandez v. State, 538 S.W.3d 619, 622 (Tex. Crim. App. 2018) (citing Cockrell v. State, 933
S.W.2d 73, 89 (Tex. Crim. App. 1996) (“The right to a trial untainted by improper jury argument
is forfeitable.”)). Further, “to preserve any error from improper jury argument, a party must object
to the argument and pursue the objection until the trial court rules adversely.” Ayers v. State, 483
S.W.3d 230, 233 (Tex. App.—Texarkana 2016, pet. ref’d) (quoting George v. State, 117 S.W.3d
285, 289 (Tex. App.—Texarkana 2003, pet. ref’d) (citing Valencia v. State, 946 S.W.2d 81, 81
(Tex. Crim. App. 1997)).
Since Cashion made no timely objection to the State’s comments during closing arguments
and brought no complaint to the trial court’s attention, he has not preserved this complaint for our
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review. We overrule Cashion’s complaint regarding the State’s comments during closing
argument.
For the reasons stated, we affirm the judgment of the trial court.
Josh R Morriss III
Chief Justice
Date Submitted: September 3, 2019
Date Decided: September 4, 2019
Do Not Publish
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