Opinion filed April 26, 2012

In The

Eleventh Court of Appeals 

__________

No. 11-10-00103-CR

__________

TOMMIE SIMMONS, Appellant 

V.

STATE OF TEXAS, Appellee

On Appeal from the 411th District Court

Trinity County, Texas

Trial Court Cause No. 9349

M E M O R A N D U M O P I N I O N

The jury convicted Tommie Simmons of aggravated assault with a deadly weapon. The 

trial court sentenced him to confinement in the Institutional Division of the Texas Department of 

Criminal Justice for a term of eighteen years. Appellant challenges his conviction in three 

issues. We affirm. 

Background Facts

Jarvis Tyson testified that appellant’s brother, Terrance “T.T.” Simmons, came to his 

house on the morning of August 1, 2008. Tyson and T.T. subsequently traveled to T.T.’s house 

located in an area that they described as “the North Side.” They shot dice at the house almost 

every day. Tyson testified that he had been at the same house on the previous night. Upon 

arriving at the house, Tyson and T.T. encountered appellant and T.T.’s other siblings. Tyson 
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testified that appellant appeared to be “tripping” because it appeared he had been using “dope.” 

When appellant overheard a derogatory comment about his sister, he stated, “I’m going to get 

my gun.” Tyson testified that appellant then returned with a gun and began saying, “I’ll shot 

[sic] you,” repeatedly to Tyson. Appellant subsequently shot Tyson three times, including at 

least one time in the abdomen. Afterwards, appellant told Tyson, “Die, hoe ass n----r.”

Tyson fled the scene by running toward a nearby highway. An off-duty TDC prison 

guard found him collapsed in the middle of the highway with blood coming from his abdomen. 

The guard transported Tyson to the local hospital in the back of his pickup. Tyson testified that 

he was subsequently “Life Flighted” to a Tyler hospital where he remained hospitalized for 

twenty-four or twenty-five days. He further testified that he was unconscious for eighteen of 

those days.

Sufficiency of the Evidence

Appellant challenges the legal and factual sufficiency of the evidence in his first issue. 

We note at the outset of our analysis that the Texas Court of Criminal Appeals has now held in 

Brooks v. State, 323 S.W.3d 893 (Tex. Crim. App. 2010), that there is “no meaningful distinction 

between the Jackson v. Virginia1legal-sufficiency standard and the Clewis2factual-sufficiency 

standard”; that the Jackson v. Virginia standard is the “only standard that a reviewing court 

should apply in determining whether the evidence is sufficient to support each element of a 

criminal offense that the State is required to prove beyond a reasonable doubt”; and that “[a]ll 

other cases to the contrary, including Clewis, are overruled.” Brooks, 323 S.W.3d at 895, 902, 

912 (footnotes added). Accordingly, a challenge to the factual sufficiency of the evidence is no 

longer viable. We also note that appellant did not have the benefit of the opinion in Brooks when 

this case was briefed. We will review appellant’s factual sufficiency challenge under the legal 

sufficiency standard set forth in Jackson v. Virginia. Under this standard, we must review all of 

the evidence in the light most favorable to the verdict and determine whether any rational trier of 

fact could have found the essential elements of the crime beyond a reasonable doubt. Jackson v. 

Virginia, 443 U.S. 307; Brooks, 323 S.W.3d at 899.

In conducting a legal sufficiency review, we are required to defer to the jury’s role as the 

sole judge of the credibility of the witnesses and the weight their testimony is to be afforded. 

 

1

Jackson v. Virginia, 443 U.S. 307 (1979).

2Clewis v. State, 922 S.W.2d 126 (Tex. Crim. App. 1996).
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Brooks, 323 S.W.3d at 899. This standard accounts for the factfinder’s duty to resolve conflicts 

in the testimony, to weigh the evidence, and to draw reasonable inferences from basic facts to 

ultimate facts. Jackson v. Virginia, 443 U.S. at 319; Clayton v. State, 235 S.W.3d 772, 778 (Tex.

Crim. App. 2007). When the record supports conflicting inferences, we presume that the 

factfinder resolved the conflicts in favor of the prosecution and, therefore, defer to that 

determination. Jackson v. Virginia, 443 U.S. at 326; Clayton, 235 S.W.3d at 778. Each fact 

need not point directly and independently to the guilt of the appellant, as long as the cumulative 

force of all the incriminating circumstances is sufficient to support the conviction. Hooper v. 

State, 214 S.W.3d 9, 13 (Tex. Crim. App. 2007).

Appellant bases his evidentiary challenge on a comment that Tyson made during crossexamination wherein he stated that he did not believe appellant knew what he was doing because 

appellant was on drugs at the time. Appellant contends that there is no evidence of the requisite 

intent based on Tyson’s testimony that appellant did not know what he was doing. We disagree. 

As noted previously, appellant made statements at the time of the shooting expressing his intent 

to shoot Tyson. Furthermore, appellant’s reliance on voluntary intoxication to negate the 

element of intent is prohibited by TEX. PENAL CODE ANN. § 8.04(a) (West 2011). Voluntary 

intoxication is not a defense to the commission of a crime, and evidence of an accused’s intoxication “does not negate the elements of intent or knowledge.” Hawkins v. State, 605 S.W.2d 586, 

589 (Tex. Crim. App. 1980). Appellant’s first issue is overruled.

Oral Comment by Trial Court

Appellant directs his second and third issues at an oral comment made by the trial judge

at the conclusion of the reading of the charge of the court. The trial judge read the portion of the 

charge preceding the verdict form in its entirety. When the trial judge reached the verdict form, 

he stated: “And then the last page has three blanks and you will need to answer two of those. 

And I’ll let the lawyers argue their respective positions about that.” The verdict form provided 

as follows:

VERDICT

We, the Jury, find the Defendant, Tommie Simmons, guilty of the offense 

of Aggravated Assault with a Deadly Weapon as charged in the indictment.

____________________________

Foreperson
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Do you find from the evidence beyond a reasonable doubt that the 

Defendant used or exhibited a deadly weapon, to-wit: a firearm, if he did during 

the commission of the offense alleged in the indictment?

ANSWER: “We do” or “We do not”

ANSWER: ___________________

____________________________

Foreperson

OR

We, the Jury, find the Defendant, Tommie Simmons, not guilty.

_____________________________

Foreperson

Appellant directs his complaint to the trial judge’s comment that the jury would need to answer 

two of the blanks. He alleges that this comment was erroneous because the jury would not need 

to answer two of the blanks if it found appellant not guilty. He contends in his second issue that 

this oral comment constituted an erroneous statement of the law, and he contends in his third 

issue that it constituted an improper comment on the weight of the evidence. 

When an appellant alleges jury charge error on appeal, we first determine whether there 

is any error in the jury charge. Hutch v. State, 922 S.W.2d 166, 170 (Tex. Crim. App. 1996). If 

we conclude there is jury charge error, we must determine if the error caused sufficient harm to 

warrant reversal. Id. at 170–71. The extent of harm requiring reversal is dictated by whether the 

error was properly preserved. Id. at 171. Appellant acknowledges on appeal that he did not 

object to the trial judge’s comment at the time it was made. Where the defendant failed to object 

to the error at trial, we may reverse only if the record shows that the error was so egregiously 

harmful that the defendant was denied a fair and impartial trial. Almanza v. State, 686 S.W.2d 

157, 171 (Tex. Crim. App. 1985).

The State argues that the trial judge’s comment did not constitute error because the jury 

could have answered two blanks on the verdict form and still found appellant not guilty. The 

State premises this argument on the contention that the jury could have answered “[w]e do not” 
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on the deadly weapon question, in addition to finding appellant not guilty. We disagree with the 

State’s contention. As set forth above, the deadly weapon question was grouped together with 

the “guilty” question. This fact is evidenced by the bold “OR” following the deadly weapon 

question. The jury would have no reason to address the deadly weapon question if it found 

appellant not guilty. Accordingly, the trial judge’s comment referencing the need to answer two 

questions on the verdict form constituted a comment on the weight of the evidence because it 

assumed the truth of a controverted issue. Whaley v. State, 717 S.W.2d 26, 32 (Tex. Crim. App.

1986). In this regard, the jury would need to answer two questions on the verdict form only if it 

found appellant guilty of the charged offense.

Having found error, we must now determine if it resulted in egregious harm. Egregious 

harm includes errors affecting the case’s foundation, denying the defendant a valuable right, 

significantly affecting a defensive theory, or making the case for guilt or punishment clearly and 

substantially more compelling. Hutch, 922 S.W.2d at 171. In determining the degree of harm, 

we look to the entire jury charge, the state of the evidence, the arguments of counsel, and any 

other relevant information from the entire record. Taylor v. State, 332 S.W.3d 483, 489–90 (Tex.

Crim. App. 2011); Hutch, 922 S.W.2d at 171; Almanza, 686 S.W.2d at 171. Errors that result in 

egregious harm are those that affect the very basis of the case, deprive the defendant of a 

valuable right, vitally affect the defensive theory, or make a case for conviction clearly and 

significantly more persuasive. Taylor, 332 S.W.3d at 490; Hutch, 922 S.W.2d at 171; Almanza, 

686 S.W.2d at 172.

We first note the circumstances surrounding the oral comment. The trial judge made the 

comment at the conclusion of the reading of the court’s charge essentially as an aside to the 

reading of the court’s charge and the impending closing arguments to be given to the attorneys. 

The comment was not so inflammatory as to provoke an objection by trial counsel or a reference 

to it during closing argument. Furthermore, the written charge of the court contained the 

following application provision:

Now, bearing in mind the foregoing instructions, if you find from the

evidence beyond a reasonable doubt that on or about the 1st day of August, 2008, 

in Trinity County, Texas, the defendant, TOMMIE SIMMONS, did then and there 

intentionally, knowingly or recklessly cause serious bodily injury to Jarvis Tyson 

by shooting him with a firearm, or the defendant did intentionally, knowingly, or 

recklessly cause bodily injury to Jarvis Tyson and did then and there use or 

exhibit a deadly weapon, to-wit: a firearm, during the commission of said assault, 
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then you will find the defendant guilty of aggravated assault as charged in the 

indictment.

If you do not so find, or if you have a reasonable doubt thereof, you will 

find the defendant “Not Guilty.”

Accordingly, the written instructions that accompanied the jury into its deliberations did not 

contain the error presented by the trial judge’s oral comment. The jury deliberated for 

approximately twenty minutes without presenting any questions to the trial court about its

responsibilities. In light of the overwhelming weight of the evidence presented at trial and the 

seemingly innocuous nature of the trial judge’s oral comment, we conclude that appellant did not 

suffer egregious harm. We note in this regard that a timely objection and accompanying curative 

instruction would have readily corrected the trial judge’s erroneous comment. See Ladd v. State, 

3 S.W.3d 547, 567 (Tex. Crim. App. 1999). We conclude that the comment did not deprive

appellant of a fair and impartial trial. Appellant’s second and third issues are overruled.

This Court’s Ruling

The judgment of the trial court is affirmed.

TERRY McCALL

JUSTICE

April 26, 2012

Do not publish. See TEX. R. APP. P. 47.2(b).

Panel consists of: Wright, C.J.,

McCall, J., and Kalenak, J.