## In t he Court of Appeals Sixth Appellate District of Texas at Texarkana

No. 06

- 22

- 00097

- CR

THOMAS RAY MAHON , Appellant

V. THE STATE OF TEXAS , Appellee

On Appeal from the 5th District Court Cass County, Texas Trial Court No. 2021F00075

Before Stevens , C.J., van Cleef and Rambin , JJ. Memorandum Opinion by Justice van Cleef2 

### ME MORANDUM OPINION A Cass County jur y convicted Thomas Ray Mahon of aggravated sexual assault with a deadly weapon , a first degree felony

. See T EX
. P ENAL C ODE A NN
. § 2 2.021 . In accordance with the jury’s assessment, the trial court sentenced Mahon to sixty

- five years’ imprisonment and ordered him to pay a $3,000.00 fine

. On appeal, 1 Mahon argues that he was egregiously harmed by the portions of the trial cou rt’s jury charge related to the deadly weapon issue. Because we find that Mahon was not egregiously harmed by any alleged jury charge error, we affirm the trial court’s judgment.
I. The Evidence at Trial 2 The victim in this case, Haley Clark, testifi ed that sh e had been dating Mahon for some time . She described their relationship as good until a “warm” day in 2019 when “ [Mahon] grabbed [her] , pushed [her] up against the wall, and choked [her]

. . . until [she] couldn’t breathe.” Clark testifie d that sh e did n ot call the po lice t o report that incident because Mahon had threatened her and her three children

. Clark testified that Mahon’s physical abuse of her continued . According to Clark, Mahon choked her, punched he r, broke things around the hou se , thr eatened t o kill her w hile h olding broken glass to her throat, and threatened to kill her children

. Clark , who had never reported Mahon’s acts to the police, eventually decided to leave Mahon

.

1 In companion causes 06

- 22

- 0 0 096

- CR, 06

- 22

- 00098

- CR, and 06

- 22

- 00099

- CR, M aho n appeals c onvictions for family violence assault by occlu s ion causing bodily injury and two counts of aggravated a ssault.

2 Mahon filed a single brief raising the same i ssu e in this cause , as well as in co mpanion causes 06

- 22

- 00098

- CR and 06

- 22

- 00 099

- CR . For j udicial efficien cy, we discuss the f a cts related to Mahon’s companion causes in this opinion.3

After the bre akup, Clark began to consider a romantic re lati onship wi th Justin
Gr andmai s on, who was also Mahon’s friend. The incidents that gave rise to the indictment in this case and ou r companion causes occurred in October 2020 , after Clark returned from a camping t rip with Grandmaison and her chil dren

. C lark testi fie d that Mahon showed up at her house unannounced and , a fter her children were asleep, accused her and Grandmaison of “ having a long, sexual relationship, which was
untrue

. ” When Clark denied the allegation, Mahon slapped her , prompting Grandma ison to ur ge M ahon to calm down. Mahon made Clark and Grandmaison sit on the living room couch so he coul d interrogate them while carrying a bone

- handle hunting knife with a six

- inch , fixed bla de

. Despite Clark ’ s and Grand maison’s d enials, M ahon re fused to belie ve tha t they had not slept
t ogether. Th e conversation soon turned violent. Grandmaison testified that Mahon held his knife to Clark’s throat while ranting and raving

. When Grandmaison told him to put down the knife, Mahon assaulte d him. Clark
te stifi ed tha t Mahon kneed Grandmai son in the face several times, held the knife to Grandmaison ’s throat, and sliced his face with the knife

. 3 Grandmaison testified that M ahon threatened to kill him during the assault and that he feared for his lif e . Clark said that
G r andmaison had blood everywh ere , and G randmaison testifie d that he frac tured his nose and almost blacked out when Ma hon was kicking him

.

3 Grandma ison said, “[ Mahon] was punching, kneeing, kicking me in the he ad, headbutting me. He put t he k nife to my head at one point. I have a min or sc ar here where he said he was going to s calp me. He said he was gonna take my eyeball out. That’s when he cut m y face.” In cause number 06

- 22

- 00098

- CR, the State alleged Mah on
“ intentionally, knowingly, and recklessly cause [d] bodily injury to Justi n Gr a ndmaison by cutting him o n or about hi s face and head w ith a knife, and the defendant did then and there use or exhi bit a deadly weapon, namely a knife, during commission o f t he assault. ”4

Clark said that, when Grandmaison stepped outside, Mahon squeezed and pushed her thro at “ as hard as - - toward s [h er ] trach ea” until she c ould not breathe and started kissing her on the side of the face while choking her. 4 According to Clark, Mahon said that he would kill Grandmaison if she did not tell him to go away , so Clark scream ed for G r andmaison to l eave. Grand m aison l eft to get help

. Meanwhile, Clark said that Mahon held his knife to her throat and penetrated her vagina with his fingers for “thirty, forty

- five minute s” without her consent. S he told Mahon, “ I f you’re goin g to rape m e , just r ape me. I need a b reak from you chokin g me. ” According to Clark, Maho n penetrate d her sexual organ with his penis while he held the knife. Clark said she did not want to have sex with Mah on b u t did not try to stop him beca use she thought he w ould kill her. Clark said th a t, after the sex, Mahon “started beating [her] head into the cabinet doors” while holding the knife. 5 By that time, Grandmaison had escaped to his friend’s hou se. His frie n d, John Sande rs, testified tha t Grand maison came t o him “ covere d head to toe in blood ” and explained what happened , which caused Sanders to call 9

- 1

- 1. On the call, which was played for the jury without objection, Sanders told the dispatche r that Mahon h a d assaulted G rand maison and wa s still attacking Cl ar k with a knife. Sanders no t ed Grandmaison’s many injuries and took him to Atlanta Memorial Hospital for medical treatment

. Photo graphs of an injured and bloodied

4 This act was the basis of the indictment in caus e number 06

- 22

- 00 096

- CR.

5 In cause numbe r 06

- 22

- 00099

- CR , the State alleged that Mahon “intentionally, knowingly, and recklessly c au se [d] bodily injury to Haley Clark by hitting Haley Cla rk on or about her head an d face wit h his hands, and the defendant did the n and t her e u se or exhibit a deadly weapon, name l y a knife, during commission of the assault.”5

Grandmaison showe d that h is clo thing wa s c overe d in blood and that he n eede d sti t ches and oth er medical treatment. 6
B ecause of Sanders’s call, police officers were dispatched to Clark’s home

. Deputy Chad Wilder arrived at Clark’s house and testified that she appeared s cared , complai ned of a he adach e,

a nd had a visible kn o t on her head

. Wilder found Mahon lying on the k itchen floor with the knife near him and arrested him. The knife, which still had blood on the blade, was admitted into evidence for the jury to inspect

. Wil der also saw tha t t here was blood throughout th e scene and took photos of the blood ie d carpet, c o uch, towels, walls, and pillow , in addition to Clark’s
tossed belonging s. Deputy Chris Spear testifie d that Mahon had no injuries but that h is ves t was covered in blood. S pea r said that Mahon admitted t he knife was his. A ccording to Spear, Mahon said ,

“ [A] t least I got laid before I got arrested , ” as he was being placed in the patrol ca r . Spear became concerned that Mahon h ad forced Cl ark to engage in noncons ensual acts and in terv iewe d Clark, who said sh e let Mahon “ d o whatever he wanted to stop him fro m choking and beating [her].” Clark also told officers that Maho n choked her, penetrated her vagina with his fingers, and h eld a knife to Grandmaison. During a custodial in t erv iew play ed for the jury, Mah o n admitted th at the knife was his and that he fou ght with Grandmaison, who had many injurie s. After hearing this evidence, the jury found Mahon guilty of the family viole nce assault by occlusion, aggravated sexual assault , a nd t wo c ounts of aggravated a ssault.

6 Se rgeant Ernest Wade Cutchall , w ho questioned Sanders and Grandmaison, also describe d G randmaison’s multiple injuries.6

II. Mahon Was Not Egregiously Harm ed by Any Alleg ed Jur y - Char ge Error The trial cour t provided the following definition for the term “deadly weapon” in its ju ry charge :

“ Deadly weapon” means

1. a firearm; or 2. any th ing manifestly designed, ma de, or adapte d for the purpose of inflicting d eat h or serious bodil y injury; or 3. anything actually used by the defendant in a manner making it capable of causing death or serious b odily injury; or 4. anything that the defe nda nt int ended to use in a man ne r that if so used would make it capable of cau sin g death or serio us bodily injury. Mahon does not complain about this definition, which is supported by Section 1.07(a) (17) of the
T exas Penal Code

. Instead, Mahon complains of the trial court’s omission of the definition of

s erious bodily injury

. A lso , Mahon argues that “ the Court’s application section [s]

. . . for the offenses of aggravated assa u lt do [] not properly instruct the jury that it must find, beyond a reasonable do ubt,

. . . tha t [Mahon] used or exhibit ed a deadly wea pon in the commission of an assault .” In addition to other elements, those application paragraphs stated that the jury was req uired to find the following third element, beyond a reasonable doubt : “ the defendant, du ring the allege d assault, used or exhibi ted a knife, a deadly we apon.” Mahon argues that “[t] he inclusion of the descriptor ‘ a deadly weapon ’ after ‘ a kn i fe ’ [ i s ] an explicit statement that a knife is a deadly
weapon per se .”7

A. Standard o f R eview
“We em ploy a two

- st ep process in our review of alleged jury

- charge err or.” Murrieta v.
State , 578 S.W.3d 552, 554 (Tex. App.

— Texarkana 2019, no pet.) (citing A b dnor v. Sta te , 871 S.W.2d 726, 731 (Tex. Crim. App. 1994)). “Initially, we determin e w hether error occurred and
t he n evaluate whether suffic i ent harm resulted fr om the error to require reversal.” Id

. (quoting Wilson v. State , 391 S.W.3d 131, 138 (Tex. A p p.

— Texarkan a 2012, no pet.)).

“ The level of harm necessary to require reversal due t o jury charge error is depen de nt upon whether the appel l ant properly objecte d t o the error. ” Id. at 555 (citing Abdnor , 871 S.W.2d at 732 )

. “ Here, because [ Mahon ] did n ot object t o the charge, we will not reverse unles s the record shows the error resul te d in egregious harm .” Id. ( ci ting Ngo v. State , 175 S. W.3d 738,
743

– 44 (Tex

. C rim. App. 2005) (citing Almanza v. State , 686 S.W.2d 157, 171 (Tex. Crim. App. 1984) (op. o n reh ’ g))

. “Jury

- charge error is egregiously har mful if it affects the very basis of the case, deprives the defe nd ant of a valuable right, or vitally affects a de f ensive theory.” Id. (quoting Stuhler v.
State , 218 S.W.3d 706, 719 (Tex. Crim. App. 2007 ) ). “ In mak ing this determination, we review

‘ the entire jury charge, the state of t he evidence, the argument of c ou nsel, and any oth er relev ant information in th e r ecord as a whole. ’ ” Id. (quoting Villarreal v. State , 205 S.W.3d 103, 106 (Tex. App.

— Texa r kana 2006, pet. dism ’ d ) (citing Al manza , 686 S.W.2d at 171) )

. “ Direct evidence of h ar m is not required to establi sh egregious harm. ” Id. ( c iting Hutch v. State , 92 2 S.W.2d 166, 171 (Tex. Crim. App. 1996) )

. However, “[a] n egregious harm determination mu s t be based on a finding of actual rather than theoretical harm. ” Arrington v. State , 4 51 S.W.3d8

834, 840 (Tex. Cr im . App. 2015) (quoting Cos io v. State , 353 S.W. 3d 766, 77 7 (Tex. Crim. App. 2011) ).
B. Analysis Here, w e assume, without deciding, that ther e was error in the jury cha rge . See Blanson
v. State , 107 S.W.3d 103, 105 (Tex. App.

— Te xarkana 2003 , no pet. ) . E ven so, we find that Mahon w as no t egregiously ha rme d by the alleged errors.
In ma king our determination, we review the j ury charge, state o f the eviden ce, argu ment of counsel, and other relevant information

. See Murrieta , 5 78 S.W.3d at 554 . In re viewi ng the entire jury charge, w e note th at the charg e c ontained a definition of “ bodily i njury ” and that the trial court’s proper definition of t he term “ de adly we apon ” required the jury to find that the weapon was capable of cau s ing death or serious bodily inju ry . The jury was also i nstructed on the lesse r - i ncluded offenses of sexual assault and assault, which would not have required a deadly w e apon findin g, b ut r ejected them

. Next, d uring argument, the State acknowledged that it had the burden to prove t hat the
kn ife was a deadly w eapon. I t argued that Ma hon was not using the knife “to peel potatoes. ” The State continued, “ He held it up to throats. He was cutting [Grandmais on] .” H owever, the State argued that the knife was “in herently a deadly w eapon,” wh ich Mahon argue d “c ut [ ] at least slightly in f

a v o r of a finding of egregious harm.” Even so, we find that the s tate of the evidence is t h e most important factor in deci ding whether Mahon suffered egregious harm in this

c ase .9

Mahon does not argue that the evidence was insuf ficient to establish that th e knife was a deadly weapon . Instead, h is appellate brief admits that “analysis of the w e ight of the probative evidence woul d cut ag ainst a showing of egregious harm.” We agr ee. O ur r eview of the record sh o w s that Mahon never suggested that h is knife wo u ld not have been capable of inflicting serious bodily injury. Instead, the evidence sho w ed that Mahon held the knife to Cla rk ’ s and Grandmaison’s throats while threatening to kill them and sliced Grandmaison ’s face, whi ch requi red him to have s ti tches. A s a result, it did not appear that the question of whether the knife was a deadly weapon was contested at trial. Con sequ ently , the alleged charge error did not affect the ver y basis of the case or vitally af fect Mahon’s defensi ve theory.
More over, Ma hon ’s h unting knife , which had a six

- inch , fixed blade , was admitted into evidence f

o r the jury to inspect. “[E] ven casu al o bservation of the five

- to

- six

- inch blade on [a]
kn ife reveals tha t if wielded during a n assault, the knife is capable of causing se rio u s bodily injury or death. ” Alvarado v. State , 317 S.W.3d 749, 753 (Tex. App.

— Be a umont 2010 , pet. ref’d )

. “ Becau se ‘ obje cts used to threaten deadly force are in fact dead ly weapons[,] ’ a knife is a deadly w eapon if its possessio n facilitates the commi ssi on of the underlying assaultive offense. ” Id. (alteration in ori ginal ) ( q u oting McCain v. State , 22 S.W.3d 497, 503 (Te x. C rim. App.
20 00) )

. In a case similar to the one h ere , the Beaumont Court of Appeals f ound that a defendant

wa s not egre giously har med by an instruction that a knife was a deadly weapon. In its reasoning, th e Beaumont court noted that the knife wa s “ bet ween five and six inches in length , ” id

. at 550, and wr ote,10

Given the physical propertie s of the knife at issue in this case, the kni fe clea rly would be capable of causing serious bodily injury if it were used as an instrument of force against anothe r person. The jury did find that [the defendant] committe d a n assault with t he knife. By vir tue of the assaultive man ner of the use of th e w eapon , that fin ding necessarily included a finding that the knife wa s capable of causing death or serious bodily i njury. The refore, the erroneous j ury charge did not depri ve [the defendant] of the valuable r ight to have a jury findi ng on each element o f t he of

fense. Id. at 754. We find the same reasoning applicable in this case. We conclude t ha t , on the facts here, Mahon has not shown actual egregious, rather than th e ore tical , harm. A s a result, we ove rrule Mahon’s arguments related to jury

- ch arg e e rror. III. Concl usion We affirm the trial court’s judgment.

Charles van Cleef Justice
Date S ubmitted: July 5, 2023 Date Decided: July 6, 2023
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