## In The Court of Appeals Seventh District of Texas at Amarillo

No. 07

- 19

- 00207

- CR

SAMUEL CAMPOS , APPELLANT

V. THE STATE OF TEXAS , APPELLEE On Appeal from the County Court at Law No

. 4

Travis County , Texas Trial Court No. C

- 1

- CR

- 17

- 209306 , Honorable Jon N. Wisser , Presiding


### Decem ber 2 , 2019 MEMORANDUM OPINION
Before QUINN , C.J. , and PIRTLE and PARKER , JJ. This appeal simply involves a “ bear hug ” and what one is. Through its charging instrument , the State accused Sam Campos of unlawfully restraining his victim by grabbing her “ from behind placing her in ‘ bear hug ’ restraint. ” The trial court omitted the
qu oted passage from its jury charge , though. Instead , it described the restraint allegedly exercised by appellant as “ seizing [the victim] on and about the torso with the Defendant ’ s

arms. ” No one objected to the variation. Eventually , the jury returned a verdict of guilty , and judgment was entered upon that verdict. Appellant now argues that the variation2

“ improperly expanded allegations contained in the charge ,” constituted charge error , and caused him egregious harm. We modify the judgment and affirm it as modified. 1 The complaint raised is nothing more than one involving a variance between the accusation in the charging instrument and the description of the accusation in the jury charge. We assume it to be jury charge error , for purposes of this app eal. Furthermore , because appellant did not object to it at trial , the error is reversible only if egregiously harmful. Next , error is egregiously harmful “ only if [it] was fundamental in the sense that it was so egregious and created such harm that th e defendant was deprived of a fair and impartial trial. ” Villarreal v. State , 453 S.W.3d 429 , 433 (Tex. Crim. App. 2015) . Not only is that a very difficult test to meet but also one requiring case

- by

- case analysis. See Arrington v. State , 451 S.W.3d 834 , 840 (Tex. Crim. App. 2015) . In determining whether the quantum of harm from the error rose to the requisite level , we consider: 1) the jury charge as a whole ; 2) the evidence , including the contested issues and the weight of the probative evidence ; 3) closing arguments ; and 4) other relevant information from the entire record. Id

. The purported harm at bar falls short of rising to the requisite level. First , the jury charge included the following definition and instruction: A person comm its the offense of Unlawful Restraint if he intentionally or knowingly restrains another person.

“ Restrain ” means to restrict a person ’ s movements without consent , so as to interfere substantially with the person ’ s liberty by confining the person. Rest raint is without consent if it is accomplished by force or intimidation. Its application paragraph stated:

1 Because this appeal was transferred from the Third Court of Appeals , we are obligated to apply its precedent when available in the event of a conflict between the precedents of that court and this Court. See T EX

. R. A PP

. P. 41.3

.3

Now , if you find from the evidence beyond a reasonable doubt that the defendant . . . did then and there intentionally or knowingly by force or inti midation , restrain [the victim] , without the consent of [the victim] , by restricting the movements of [the victim] , to wit: by seizing [the victim] on or about the torso with the Defendant ’ s arms , you will find the Defendant guilty of the offense of Unlawf ul Restraint , however , if you do not so find , or you have a reasonable doubt thereof , you will find the defendant not guilty. (Emphasis supplied). Second , a bear hug in common parlance is merely a “ tight embrace ” involving someone wrapping his arms around another. See Bear H ug , W EBSTER ’ S T HIRD N EW I NTERNATIONAL D ICTIONARY ( 1st ed. 1976) (defining “ bear hug ” as a “ rough tight embrace ”

or “ a wrestling hold ” where one contestant “ locks his arms around the opponent ’ s back and forces him backwards to the mat

. ” ) Third , the prosecutor , during voir dire , told panel members that the State ’ s burden consisted of proving that a defendant intentionally or knowingly restrained another
person ’ s liberty. Later , during opening argument , she told the jury appellant grabbed the victim with his arms and held her down on a bed. During trial , an officer testified that the victim told him appellant “ grabbed her in a bear hug

. ” The victim testified that appellant grabbed her from behind and around her arms and body , pul led her down onto the bed , and there held her down. During closing argument , the prosecutor told the jury that the application paragraph presented “ basically what we ’ ve proved through the testimony in the trial. ” In turn , defense counsel ’ s closing argum ent included 1) a reminder of the victim ’ s testimony about being “ bear hugged ” on the bed and 2) a description of the State ’ s burden of proof that consisted of proving “ beyond a reasonable doubt whether or not [appellant] intentionally , knowing , [ sic ] restrained her liberty by holding her torso [.] ” ( E mphasis supplied). At no4

time did said defense counsel draw a distinction between a “ bear hug ” and seizing someone about the torso. Simply put , a “ bear hug ” is an embrace with one ’ s arms about the tors o of another , just as described in the jury charge. Maybe that is why no one objected to the jury charge. Indeed , appellant made no effort to explain any difference between the two descriptions in his brief , other than concluding that they were different

. Furthermore , the testimony illustrated that appellant placed his victim in a “ bear hug ,” i.e. , embrace d her around her torso with his arms. Given the se circumstances , we find that appellant was not deprived of a fair trial by the variance in question. So , the purported error was not egregious on the record here , and we overrule appellant ’ s contention otherwise. Nevertheless , there is a mistake in the trial court ’ s judgment involving appellant ’ s name. While called “ Sam Salazar Camos ” in the jud gment , his name appears as “ Sam Campos ” in the complaint , information , and jury charge. This C ourt has the power to modify the judgment of the court below to make the record speak the truth when we have the necessary information to do so. T EX

. R. A PP

. P. 43.2(b) ; Bigley v. State , 865 S.W.2d 26 , 27

– 28 (Tex. Crim. App. 1993) (en banc ) . So too
may w e correct , sua sponte , whatever the trial court could have corrected by a judgment nunc pro tunc

. Asberry v. State , 813 S.W.2d 526 , 529 (Tex. App.

— Dallas 1991 , pet. ref ’ d) . This is one of those occasions.5

Therefore , on our own motion , we modify the judg ment to reflect appellant ’ s name

as “ Sam Campos. ” And , in so modifying the decree , we affirm it.

Brian Quinn Chief Justice

Do not publish.