### T E X A S C O U R T O F A P P E A L S , T H I R D D I S T R I C T , A T A U S T I N

NO. 03-14-00352- CR

Toni eka Renea M cIlvennia, AKA Tonieka Reanea Mc Ilvenna, AK A Tonieka Renea Burns ide, AKAToni eka Jam es, Appellant

v. The State of Texas, App ellee

F ROM TH E DISTRI CT COURT O F B ELL COUNTY , 27TH JUDICI AL DISTRICT NO. 710 94, TH E H ONO RAB LE JO HN GAUNTT, JUDGE P RESIDING

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

A jury found appellant Tonie k a Re nea McI lvennia, AKA Tonieka Reane a McI lvenna AKA Tonieka Renea Bur

nside AKA Tonieka J ames, g uilty of ag g ravated assault on a public serva nt and evading detention wit h a vehicle. See Tex. Penal C ode §§ 22.02(a )(2) , (b)( 2)(B ), 38.04. The trial court assessed appellant’ s punishment at confine ment in the Texas Depa rtment o f C ri m i n al J ustice 25 for y ear s on the assault o ff en s e and ten y ear s on the evading offe nse, order ing the
sentenc es to run concur

rently

. See id. §§ 12.32, 12.425. In five points of err or, appellant challeng es t h e s u ff i ciency of the evidenc e and complains about err or in the jury char g e. We aff irm the t ri al court’s judg ments of conviction.BACK GR OUND Of fi cer J ohn J ones, an office r with the Killeen Police Depa rtment, was on patrol when he observe d a car that had been repor ted stolen pull into a convenie nce store parking lot. He confirme d that the car was still listed as stolen and called for back- up. He pulled in and parke d his marke d patrol car at an ang le behind the stolen car . He saw the driver g o inside the store, but knew

a passeng er rema ined in the car . Moments later he observe d the driver come out of the store, g o to the passeng er side of the car , and lean o v er to speak to the passeng er. The evidenc e at trial demonstrated that appellant was the passeng er in the stolen car . Offic er J ones instit uted a “hig h-risk felony stop,” approa ching the driver o n the passeng er side of the car . He was wea ring his police uniform with depar

tmental patche s o n the sleeve s, had his police badg e display ed, and had his service wea

pon draw n. He direc ted the driver to turn around, back toward him, and g et down on his knees. The driver c omplied with the office r’s c ommands.

As Offic er J ones was initiating the detention of the driver, Offic er Cristina Ocampo, al s o wi t h the Killeen Police Depa rtment, arr ived in her marke d patrol car , with emer g ency lights flashing , to assist. L ike Offic er J ones, Offic er Ocampo was wea ring her police uniform with depar tmental patche s on th e s l ee ves and had her police badg e display ed. Offic er Ocampo handcuf fed the driver and p l ac ed h i m in her patrol car . As the office rs detained and eff ecte d the

arr est of the driver, appellant moved from the passeng er seat of the stolen car to the driver seat. Offic er J ones then moved to the driver side of the car . Appellant, who was talking on her cell phone, rolled down the driver side window and inquired about what was happening

. Offic er J ones still had

2his wea

pon draw n and instructed appellant to g et off the phone and g et out of the car . He repe ated this command sever al times but appellant did not comply

.

After she finished a

rre sting the dr iver, Of

fice r Oc ampo joined Offic er J ones on the driver side of the car . Both office rs repe ated their command for appellant to g et off the phone and exit the vehicle but appellant still did not comply

. Finally , both office rs approa ched the car toge ther and Offic er J ones opened the car door. He war ned appellant that if she did not g et out of the car she would be tased. At this point, the car door was wi d e o p en an d b oth office rs wer e standing at the door jamb. Appellant still did not comply with the office rs’ commands. Offic er J ones then rea ched into the car to g rab appellant in a n attempt to remove her from the car . Appellant resisted, and the

car l u rche d forwa

rd then rolled back slightly

. The office rs then hear d the eng ine rev. Offic er Oca

mpo order ed appellant to put the car in park. Offic er J ones told Offic er Ocampo to tase appellant. Offic er Ocam p o , standing within an arm’s rea ch of appellant, tased appellant. At that point, the car acc eler ated rapidly backw ards. The driver side door struck Offic er Ocampo briefly as she moved to g et out of the way and swept Offic e J ones wi t h it, knocking him to the g round. Ap p el l ant executed a donut turn in the parking lot and then backe d out onto the street

. Offic er Oca

mpo ran afte r the car with her weap o n d ra wn y elling for appellant to stop. I nstead, appellant sped off, scre eching her t ires, driving throug h a four- way stop without stopping. Offic er Oca

mpo returne d to assist Offic er J o n es , who appea red to be “lifele ss” as he lay on the g round. Other office rs and emer g ency medical personne l responde d to the scene . The stolen car ,

1

Offic er J ones suffe red a dislocated and fra cture d shoulder, which require d five months of 1 phy sical thera

py befor e he was allowed to return to work afte r six months. At the time of trial, two and a ha lf y ear s later, his injuries we re still not completely heale d. 3with Taser leads c oming f

rom the driver side door, was found aba ndoned about one mile from the convenie nce store approximately one hour later. Appe llant was appr ehende d five da y s later.

DISCUSSIO N Appellant raises five points of err or: two challeng ing the sufficie ncy of the evidenc e, three complaining about er ror in the jury

char g e.

Suf fi ciency of the Evidence Due proce ss require s that the State prove, bey ond a rea sonable doubt, ever y element of the crime char g ed. Jack son v. Virginia , 443 U.S. 307, 313 (1979); Rabb v. State , 434 S.W .3d 613, 616 (Tex. Crim. App. 2014). When revie wing the s u ff i ci en cy of the evidenc e to support a conviction, we consider all the evidenc e in the light most fav o ra ble to the verdic t to deter mine whether, based on that evidenc e and the rea sonable infere nces there from, any rational trier o f fac t could have found the essential elements of the o ff en s e b ey ond a rea sonable doubt. Jack son , 4 4 3 U.S. at 319; Temple v. State , 390 S.W .3d 341, 360 (Tex. Crim. App. 2013); Brooks v. State , 323 S.W .3d 893, 899 (Tex. Crim. App. 2010). I n our suffic iency revie w we must consider all the evidenc e in the rec ord, whether direc t or circ umstantial, proper ly or improperly admitted, or submitt ed by the prosec ution or the defe nse. Thompson v. State , 408 S.W .3d 614, 627 (Tex. App.—Austin 2013, no pet.); see Clayton v. Stat e , 235 S.W .3d 772, 778 (Tex. Crim. App. 2007); Finley v. State , 449 S.W .3d 145, 147 (Tex. App.—Austin 2014), aff’d , 484 S.W .3d 926, (Tex. Crim. App. 2016). We re view all the evidenc e in the light most fa vorable to the verdic t a

nd assume that the trier of fac t reso l v ed co n fl icts in the testimony , weig hed the evidenc e, and drew rea sonable

4i n fer ence s in a manner that supports the verdic t. Jack son , 443 U.S. at 318; see Laster v. S t a t e , 275 S.W .3d 512, 517 (Tex. Crim. App. 2009). We c onsider only whether the fa ctfinder

rea ched a rational decision. Isassi v. State , 330 S.W .3d 633, 638 (Tex. Crim. App. 2010) (“O ur role on appea l is restricted to guarding

ag ainst the rar e occ urre nce w hen a f actf inder doe s not act rationally .”). To deter mine whether the State has met its evidentiar y burden of proving a defe ndant g uilty bey ond a re as onable doubt, we compar e the elements of the offe nse as define d by the hy pothetically corr ect jury char g e to the evidenc e adduce d at trial. Thomas v. State , 444 S.W .3d 4, 8 (Tex. Crim. App. 2014) (cit i n g Ma l i k v. State , 953 S.W .2d 234, 240 (Tex. Crim. App. 1997)); Felder v. State , No. 03-13-00707- CR, 2014 WL 7475237, at *2 (Tex. App.—Austin Dec

. 19, 2014,

no pet.) (mem. op., not desig nated for publication). A hy pothetically corr ect jury char g e is one that “ac curately sets out the law, is authorized by the indictment, does not unnece ssaril y incre ase the State’s burden of proof or unnece ssarily restric t the State’s theories of liabili t y , an d adequately d es cr i b es the particula

r offe nse for which the defe ndant was tried.” Thomas , 444 S.W .3d at 8 (quoting Malik , 953 S.W .2d at 240); Roberson v. State , 4 2 0 S

. W

. 3d 832, 840 (Tex. Crim. App. 2013). The law as authorized by t h e i n d i ct ment consists of the statutory elements of the char g ed offe nse as modified by the fac tual details and leg al theories contained in th e i n d i ct m en t. Patel v. State , No. 03-14-00238- CR, 2016 WL 2732230, at *2 (T ex. App.—Austin May 4, 2016,

no pet. h.) (mem. op., not desig nated f or publication); see Thomas , 444 S.W .3d at 8 (“ The ‘la w as authorize d by the i ndictment’ consist s of t he st atutory elements of the offense and those elements

as modified by the indictment.”); Daugherty v. State , 387 S.W .3d 654, 665 (Tex. Crim. App. 2013)

5(“The law as ‘authorized by the ind i ctm ent’ includes the statutory elements of the offe nse ‘as

modified by

the cha rg ing instrument.’ ”). Aggravated Assault on a Public Serv ant

I n her first point of err or, ap p ell ant arg ues that the evidenc e was insufficient to support her conviction for ag g ravated assault on a public serva nt beca use the evidenc e failed to show that Offic er John J ones wa s a public ser vant as de fined by

statute. As rele vant t o the i ndicted charg e here, a person c ommits ag g ravated assault if she “intentionally , k n o wi n g ly , or rec klessly cause s bodily injury to another ” and “uses or exhibi ts a deadly wea

pon during the commission of the assault,” see Tex. Penal Code §§ 22.01(a) (1), 22.02(a) (2), and commits the offe nse ag ainst someone she knows is a public serva nt while the public

serva nt is lawfully discharg ing an officia l d u t y , s ee i d. § 22.02(b)( 2)(B ). The Texas Penal Code d ef i n es “p ublic serva

nt” as, in rele vant part, “a person elec ted, selec ted, appointed, employ ed, or otherwise desig nated as an office r, employ ee, or ag ent of g overnme nt.” See id. § 1.07(41). The term “g overnme nt” means “(A ) the state; (B ) a county , municipality , or political subdivision of the state; or (C) any branc h o r age n cy of t he st ate, a county , municipality , or pol itical subdivision.” See id. § 1.07(24). The rec ord contains evidenc e demonstrating that at the t i m e of the alleg ed assault offe nse, J ones was employ ed as a patrol office r with the Killeen Police Depa rtment. Appellant never disputed this e vidence either below or on appea l. I nstead, while acknow ledg ing this evidenc e, she maintains that “the State did nothing to connec t this evidenc e with an y thing in the

. . . statutory definition of public serva nt.”

6Howeve r, J ones’s testimony —that he was a patrol off

ic e r a n d p eac e office r employ ed with the Killeen Police Depa rtment at the time of the assault—demonstrate d that J ones was both an office r and employ ee of a municipality (as well as an ag ency of a municipality) when the ag g ravated assault was committed. Be cause we measure the sufficie ncy of the evidenc e ag ainst the hy pothetically corr ect jury char g e, see Thomas , 444 S.W .3d at 8, this evidenc e was su fficie nt to establish that Offic er Jones was a public servant within the m eaning of t he P enal Code. See Carr

v. State , No. 14-09-0032 2 -C R , 2010 WL 2835663, at *3–4 (Tex. App.—Houston [14t h Dist.] J uly 20, 2010, pet. ref’d) (mem. op., not desig nated for pu b l i cation) (observing that “many courts have held that the term ‘public serva nt’ nec es s ar i l y contemplates a police office r”) ; Campbell

v. State , 128 S.W .3d 662, 668 (Tex. App.—Waco 2003, no pet.), overruled on other grounds by Brumbalow v

. State , 432 S.W .3d 348 (Tex. A pp.—Waco 2014, no pet.) (re cog nizi ng that “‘public

serva nt’ is a broad term including ‘pea ce office rs’ an d ‘police office rs’” ); Carriere v. State , 84 S.W .3d 753, 757 (Tex. App.—Houston [1st Dist.] 2002, pet. ref ’d) (noting that “[a]lt houg h not expli citly included in the Penal Code definition of a ‘public serva nt,’ courts have interpre ted public

serva nt to include a police office r,” and holding that police office r is public serva nt within meaning of criminal reta liation statute); Hoitt v. Stat e , 28 S.W .3d 162, 165 (Tex. App.—Texarkana 2 000), pet. dism’d, improvidently granted , 65 S.W .3d 59 (Tex. Crim. App. 200 1 ) (“ A municipal police office r is a public serva

nt within the meaning of the Penal Code.”); McCoy v. State , 932 S.W .2d 720, 723 (Tex. App.—For

t Worth 1996, pet. ref

’d) (holding that municipal police office r is public serva nt for purposes of statutes criminalizing ag g ravated as s ault and reta liation ag ainst public serva nt).

7Acc ording ly , the evidenc e was sufficie nt to support appellant’ s conviction for ag g ravated assault on

a public ser

vant. We overr

ule appe llant’s first point of err or. Evading De tention wit h a Vehicle

I n her fifth point of err or, appellant contends that the evidence was insufficient to support her conviction for evading detention with a vehicle beca use the evidenc e failed to show that she knewthat Cristina Ocampo wa s a police of fice r attempting to detain her

. As rele vant to the evading detention alleg ed here , a person commits an offe nse if she intentionally flee s from a person she knows is a peac e office r attempting lawfully to arr est or detain her. See Tex. Penal C ode § 38.04(a)

. The offense is a thi rd degr ee felony if the de fe n d an t u ses a vehicle while in flig ht. See id. § 38.04(b)( 2)(A)

. Appellant does not dispute that as a police office r for the City of Kil leen, Ocampo was a peace office r for purposes of the evading detention statute. See id. § 1.07(36); Tex. Code Crim. Proc. art. 2.12, § 3. Rather, afte r chronolog ically detailing the
two dash-c am vi deos from the patrol car s, appellant asserts t hat t he evidence failed to prove “that [appellant] was even awa

re that Offic er Ocampo was prese nt, let alone that she was a police office r attempting to detain [her].” Appellant’s claim, howeve r, is based o n a l i m i t ed review of only a portion of the evide nce, w hich is contrar y to the well-e stablished proce dure for conducting a leg al sufficie ncy revie w. See Clayton , 235 S.W .3d at 778 (in conducting leg al sufficie ncy revie w, courts

assess “all of the evidenc e”) ; Boston v. State , 373 S.W .3d 832, 836 (Tex. App.—Austin 2012), aff’d , 410 S.W .3d 321 (Tex. Crim. App. 2013) (“I n deter mining the leg al sufficie ncy of the evidenc e, we must consider all the evidenc e in the rec ord, whether direc t or circ umstantial, proper ly or improperly admitted, or submitted by the prosec ution or the defe nse.”) (citations omitted).

8The evidenc e at trial—which included the testimony of the police office rs in addition

to the dash-c am videos from their patrol car s—showed that appellant repe atedly ref used to comply with the office rs’ commands to g et out of the car . Both office rs approa ched the car toge ther. After Offic er J ones opened the car door, both office rs stood toge ther at the door jamb. Offic er J ones had his g un draw n and Offic er Oca mpo had her Taser draw n when Offic er J ones war ned appellant to g et out of t he car or she would be tased. When appellant still did not g et out of the c ar, O ffice r J ones

rea ched int o t h e ca r t o p ull her out while Offic er Ocampo ag ain told her to g et out of the car . Appellant resisted being remove d from the car and moved both hands toward the passeng er side of the car , making furtive movements. As she resisted, the car lurche d forwa rd, then rolled back. The office rs t hen heard the eng ine rev. Offic er J o n es y ell ed for Offic er Ocampo to tase appellant and Offic er Ocampo y elled at appellant to put the car in park. Appellant responde d to Offic er Ocampo stating that “[she was] try ing.” Offic er Ocampo was standing immediately next to Offic er J ones in the door jamb, within an a rm’s re ach of

appellant, a

bout one foot aw ay , when she tased a ppellant. At that point, the car acc eler ated rapidly backw ards, striking Offic er Ocampo briefly as she moved
to g et out of the way . Appellant executed a donut turn in the parking lot, backe d out onto the street, and sped off as Offic er Oca mpo ran afte r the car with her wea pon draw n y elling for appellant to stop. Offic er Oca

mpo was dresse d in her police uniform as she stood at the door jamb next to Offic er J ones order ing appellant to g et out of the car . She was within an arm’s rea ch of appellant when she commanded h er t o p u t the car in park. Appellant’s response —“I ’m try ing. I ’m try ing.” —demonstrates that she was awa re of Offic er Ocampo’s presenc e. Offic er Ocampo tase d appellant from about one foot awa y afte r appellant repe atedly ref used t o comply with verba l

9commands from both Offic er J ones and Offic er Ocampo. As appellant backe d up the car and drove

o ff , Offic er Oca

mpo ran afte r her y elling for her to stop. Fr om the evidenc e of these interac tio n s betwee n appellant and Offic er Oca mpo, the jury could rea sonably conclude that appellant knew that Offic er O campo wa s try ing to de tain her.

Evidence is sufficie nt to support a conviction whe n , b as ed on the evidenc e and

rea sonable infere nces there from, any rational fac t finder could have found the essential elements of the offe nse bey ond a rea sonable doubt. Jack son , 443 U.S. at 319; Anderson v. State , 416 S.W .3d 884, 888 (Tex. Cr i m . Ap p . 2 0 1 3 ). Ba sed on the evidenc e prese nted at trial and the

rea sonabl e i n fer ence s there from, we conclude that the jury could have rationally found bey ond a

rea sonable doubt that appellant knew that Offic er Ocampo was a peac e office r attempting to detain her. There fore , the evidenc e was sufficie nt to support appellant’ s conviction for evading detention with a vehicle . We overrule appellant’ s fifth point of err or. Jury Charge Err or During the char g e confe renc e at t h e end of the g uilt-innocence phase of trial, appellant did not object to the court’s char g e or reque st any instructions. On appea l, she raises three points of error complaining about err or i n the court’s jury char g e. She asser ts that the additi on of

an instruction to the statutory definition of “public serva nt” constituted an improper comment on the weig ht of the evidenc e, the omission of a stat u t o ry definition of “g overnme nt” was err or, and the failure to give the statutory instructions reg ardingthe law on statutory presumptions was er

ror.

10Stan dard of Revie w We revie w alleg ed jury char g e err or in two steps: first, we deter mine whether err or exis ts; if so, we then evaluate whether sufficie nt harm resulted from the err or to require reve rsal. Price v. State , 457 S.W .3d 437, 440 (Tex. Crim. App. 2015); Ngo v. State , 175 S.W .3d 738, 743–44 (Tex. Crim. App. 2005). The deg ree of harm require d for reve rs al depends on whether the jury cha rge error was preserve d in the t rial court. Almanza v. Stat e , 686 S.W .2d 157, 171 (Tex. Crim. App. 1985) (op. on r eh’g ). I f the jury char g e er ror ha s been properly prese rved by an objection or reque st for instruction, reve rsal is require d if the appellant has suffe red “some harm” from the err or. V eg a v. State , 394 S.W .3d 514, 519 (Tex. Crim. App. 2013); Almanza , 686 S.W .2d at 171; see Barrios v. State , 283 S.W .3d 348, 350 (Tex. Crim. Ap p. 2009) (“I f there was err or and appellant objected to the err or at trial, reve rsal is r equire d if the err or ‘is calc ulated to injure the rig hts of the defe ndant,’ which we have define d to mean that there is ‘some harm.’” ). When the char g e err or was not properly

prese rved by an objection or request for instruction, the e rror must be “fundamental” and require s reve rsal only if it was “so eg re gious and cre ated such harm that the defe ndant was deprive d of a fair and i mpartial t rial.” Villarreal v. Stat e , 453 S.W .3d 429, 433 (Tex. Cri m . App. 2015); Almanza , 686 S.W .2d at 171.
The Alleged Error Addition to Publi c Serv ant Definition

I n her second point of err or, appellant complains about the trial court’s definition of “public serva

nt” in the abstrac t portion of the jury char g e, which set forth the following definition: “Public serva

nt means a

person e lected, se lected, a ppointed, employ ed or othe rwise designated as

11an office r, employ ee o r ag ent of g overnme nt. A police office r is a public serva nt.” The first
sentenc e is consistent with the statutory definition of “public serva nt” in the Penal Code. See Tex. Penal Code § 1.07(41)( A). T h e s ec o n d s entenc e, howeve r, is not contained in the statutory definition. Appellant argues tha t th e addition of this sentenc e constituted an impermissible comment on the weig ht of the evide nce.

J uries are fre e to “conside r and evaluate the evidenc e in whateve r way they consider it rele vant to the statutory offe nses.” Kirsch v. State , 357 S.W .3d 645, 651 (Tex. Crim. App. 2012) (q uoting W

alters v. Stat e , 247 S.W .3d 204, 211 (Tex. Crim. App. 2007)). Acc ording ly , the C o d e of Criminal Procedur e require s that instructions to the jury be limit ed t o s ett ing forth the law applicable to the case and that they not express any opinion as to the weig ht of the evidenc e. Gree n v. Stat e , 476 S.W .3d 440, 445 (Tex

. C ri m. App. 2015), cert. denied , 15-1250, 2016 WL 1381480 (U.S. May 23, 2016); see Tex. Code Crim. Proc. art. 36.14 (trial court is require d to g ive jury written char g e “se tting for

th the law applica

ble to the ca se; not expressing any opinion a s to the weig ht of the evidenc e, not summing up the testimony , disc u s s i n g t h e fac ts or using any argument in [i ts] char g e calc ulated t o ar o u s e the sy mpathy or excite the passions of the jury ”). “[S] pecia l, non-statutory instructions, even wh en t h ey relate t o statutory offe nses or defe nses, gene rally have

no place in the jury char g e.” Kirsch , 357 S.W .3d at 651 (quoting W alters , 247 S.W .3d at 211). A non-statutory instruction constitutes a prohibited comment on the weig ht of the ev i d en ce if that instruction (1) is not g rounded in the P enal Code, (2) is cover ed by the gene ral charg e to th e jury , and (3) focuse s the jury ’s attention on a specific ty pe of evidenc e that may support an element of an offe nse or a defense. W

alters , 247 S.W .3d at 212; see K i r s ch , 357 S.W .3d at 651. Fur ther, “[a] n

12instruction, albeit fac ially neutra l and leg ally acc urate , may never theles s co n s t i tute an improper
comment on the weig ht of the evidenc e.” Kirsch , 357 S.W .3d at 651; see, e.g. , Brow n v. State , 122 S.W .3d 794, 797 (Tex. Crim. App. 2003).

Her e, the complained- of instruction—that a police office r is a public serva nt—is not g rounded in the Penal Code, the content of the instruction is cover ed by the g ener al char g e to the jury (in the statutory definition of “public serva nt”), and the proposed instruction focuse d the jury ’s attention on a speci fi c t y

pe of evidenc e that may support an element of the offe nse. See W alters , 247 S.W .3d at 212. Although the trial court’s instruction was a corr ect, neutra l statement of the law reg arding police office rs as public serva nts and mere ly incorporated exis ting case law, it impinged 2

on the jury ’s fac t-finding authority by “improper ly tell[ ing] the jury how to consider cer tain evidenc e befor e it.” See W

alters , 247 S.W .3d at 214. Fur ther, while the instruction set forth in the char g e is

an appropr iate definition for an appellate court to apply in assessing the sufficie ncy of the evidenc e to support the “public serva nt” element, instructing the jurors as to that definition in this case impermissibly g uided their understanding of the term. See Kirsch , 357 S.W .3d at 652; see also Carr , 2010 WL 2835663, at *9 (“While the instruction, ‘a public serva nt mean s a police office r,’

We noted this case la

w i n our di scussion of appellant’s sufficie ncy challeng e in her first 2 point of err or, see supra p. 7: Carr v. State , No. 14-09-00322- CR, 2010 WL 2835663, at *3–4 (Tex. App.—Houston [14t h Dist.] J uly 20, 2010, pet. ref’d) (mem. op., not desig nated for p u b l i ca t i o n); Campbell v. State , 128 S.W .3d 662, 668 (Tex. App.—Waco 2003, no pet.), ove r r u l ed on other grounds by Brumbalow v. State , 432 S.W

. 3 d 3 4 8 (Tex. App.—Waco 2014, no pet.); Carriere v. State , 84 S.W .3d 753, 757 (Tex. App.—Ho uston [1st Dist.] 2002, pet. ref ’d); Hoitt v. State , 28 S.W .3d 162, 165 (Tex. App.—Texarkana 2 0 0 0 ), pet. dism’d, improvidently granted , 6 5 S .W.3d 59 (Tex. Crim. App. 2001); McCoy v. State , 932 S.W .2d 720, 723 (Tex. App

. — Fo rt Worth 1996, pet. ref’ d). 13constitutes an acc ura t e s tatement of law, it mag nifies a particula r fac t: a police office r is a public serva

nt.”). Whether appellant’ s assault was committed ag ainst a public serva nt w as a question of fac t to be resolved by the jury

. See Tex. Code Crim. Proc. art. 36.13; Brown , 122 S.W .3d at 798–99. I t was the responsibility of the advocates to arg ue or ref ute that the evidenc e supported that element of the o ff

en s e. See Kirsch , 357 S.W .3d at 652; W alters , 247 S.W .3d at 214; Brown , 122 S.W .3d at 798-99. Although the instruction did not “pluck out” any specific piece of evidenc e for spe cial attention, see, e.g. , Fabela v. State , 431 S.W .3d 190, 196 (Tex. App.—Amar illo 2014, pet. dism’d) (trial court’s instruction that d eputy was peac e office r—“Y ou are instructed that Chief Deputy J oe Orozco is a peace office r.”—w hen deputy ’s status as pea ce of fice r was element of offe nse constituted comment on evidenc e and was err oneous), it did improperly focus the jury on the ty pe of evidenc e that would support a finding t h at Offic er J ones was a public serva nt. See Kirsch , 357 S.W .3d at 652; W alters , 247 S.W .3d at 214; Brown , 122 S.W .3d at 802. Acc ording ly , we conclude that the trial court’s inclusion of the a dditional sentence to the statutory definition of “public servant” in the jury char g e was err or. See Kirs ch , 357 S.W .3d at 651 (“With only limit ed exceptions, the trial court may not in cl u d e an i nstruction that focuse s the jury ’s attention on a specific ty pe of evidenc e that may support a finding of an element of an offe nse.”) ; Bartlett v. State , 270 S.W .3d 147, 152 (Tex. Crim. App. 2008) (“Eve n a seeming ly neutra l instruction may constitute

an impermissible comment on the weig ht of the evidenc e beca use such an instruction single s out that particula r piec e of e vidence for spe cial attention.”)

.

14Omission of Governme nt Definition I n her third point of err or, appellant complains that the trial court’s jury char g e was

err oneous beca

use it did not include the statutory definition of “g overnme nt” in the abstrac t portion of the c harg e. A trial court is statutorily obligated to instruct the jury on the “law applicable to the

case ,” which r equire s that the jury be instructed on eac h element of the offe nse cha

rg ed. See Tex. Code Crim. Pr o c. art. 36.14; Vasquez v. State , 389 S.W .3d 361, 366 (Tex. Crim. App. 2012) (“B eca use the char g e is t h e i n s trument by which the jury convicts, [i t] must contain an acc urate statement of the law and must set out all the essential elements of the offe ns e. ”). The “law applicable to the case ” includes the statutory definitions that a ffe ct the meaning of the elements of the offe nse. Ouellette v. State , 353 S.W .3d 868, 870 (Tex. Crim. App. 2011); Villarreal v. State , 286 S.W .3d 321, 329 (Tex. Crim. App. 2009). Thus, a trial court must communicate to the jury eac h statutory definition related to the char g ed offe nse. S ee Villarreal , 286 S.W .3d at 329; see also Nejnaoui v

. State , 44 S.W .3d 111, 119 (Tex. App.—Houston [14t h Dist.] 2001, pet. ref ’d) (“[T]he
t ri al court must define any leg al phrase that a jury must nece ssarily use in proper ly resolving t h e issues, and provide the s tatutory definition if available .”). The court’s dut y to instruct the j ury on the “law applicable to the ca s e” ex i s t s even when defe nse counsel fails to object to inclusions or exclusions i n the char g e. Taylor v

. State , 332 S.W .3d 483, 486 (Tex. Crim. App. 2011). The trial
court is “ultimately responsible for the acc urac y of the jury char g e and acc ompanying instructions.” Id. at 488 (quoting Delgado v. State , 235 S.W .3d 244, 249 (Tex. Crim. App. 2007)).

15I n this case, appellant was char g ed with a g g ravated assault on a public serva nt. As noted previously , the Texas Penal Code define s “public serva nt,” i n re l ev ant part, as “a person elec ted, selec ted, appointed, employ ed, or otherwise desig nated as an office r, employ ee, or ag ent of g overnme nt.” See id. § 1.07(41). Ag ain, t he P enal Code define s the t erm “g overnme nt ” t o m ean “(A ) the state; (B ) a county , municipality , or political subdivision of the state; or (C) any branc h or ag ency of the state, a

county , municipality , or political subdivision.” See id. § 1.07(24). Be cause the term “ g overnme nt” has be en statutorily define d in the Penal Code and that term aff

ects the meaning of the “public serva nt” element of the char g ed assault offe n s e, see Ouellette , 353 S.W .3d at 870, the trial court’s failure to include the definition in the jury char g e here

was er ro r. S

ee, e.g. , Leach v. State , No. 03-13-00784- CR, 2015 WL 8607060, at *2 (Tex. App.—Austin Dec

. 9, 2015, no pet.) (mem. op., not desig nated for publication) (trial court’s failure
to include statutorily define d term “dating relationship” in jury char g e for family -violence -assaultby -strangulation offense was e rror ). Instructions Regarding Statutory Presumption

Section 22.02(c) of the Te x as P enal Code provides that “[t]he actor is pre sumed to have known the person assaulted was a public serva nt or a secur ity office r if the person was wea ring a dis tinctive uniform or badg e indi cating the per son’s employ ment as a public se rvant or status as

a secur ity office r.” Tex. Penal Code § 22.02(c)

. I n the jury char g e, the trial court instructed the jury

on this presumption by quoting the statutory section almost verbatim, omitti ng the ref ere nce to status

as a secur ity office r. In her fourth point of err or, appellant contends that the court fu n d am entally

16err ed by failing to instruct the jury that the statutory presumption provided by section 22.02(c) of the

Penal Code is a per

missive presumption. Mandatory presumptions are unconstitutional beca use th ey relieve the State of its constitutionally -re quired burden of proving ever y element of the offe nse bey ond a rea sonable doubt. Garrett v. State , 220 S.W .3d 926, 930 (Tex. Crim. App. 2007); Brown , 122 S.W .3d at 799 (“Ma ndatory presumptions violate due proce ss by shifting the b u rden of production or proof to a criminal defe ndant on a critica l fac t or element of the offe nse.”)

. A permissive presumption, on the other hand, allows but does not require the fac t finder to fi n d t h e elementa l fac t on proof of the predic ate fac t, and place s no burden on the acc used to disprove the elementa l fa ct

. Garrett , 220 S.W .3d at 931 n. 5 ; T o t t en h a m v. State , 285 S.W .3d 19, 31 (Tex. App.—Houston [1st Dist.] 2009, pet. ref

’d). Instructions pursuant to section 2.05(a) (2) of th e T e xa s Pe n a l Code—which require the jury to be instructed on the permissive nature of any statutory presumption favor able to the State and how the presumption relates to the State’s burden of proof—c onvert a mandatory presumption into a permissive presumption. Id. at 931; Ramirez-M emije v. State , 466 S.W .3d 894, 897 (Tex. 3

Section 2.05(a) (2) of

the Texas Penal Code provides: 3 (2) if the exis tence of the presumed fac t is submi tted to the jury , the court shall char g e the jury , in terms of the presumption and the specific element to which it applies, as follows: (A) that the facts g iving rise to the presumption must be prove n bey ond a re asonable doubt; (B ) that if such fac ts a re proven bey ond a rea sonable doubt the jury may find that the element of the offe nse soug ht to be presumed exis ts, but it is not bound to so find; (C) that even though the jury may find the exis tence of such element, the s t at e must prove bey ond a rea sonable doubt eac h of the other elements of the offe nse cha rg ed; and 17App.—Houston [14th Dis t.] 2015, no pet.). A jury char g e containing a statutory presumption that benef its the State must also contain the instructions require d by Penal Code section 2.05(a) (2). See Hollander v. State , 414 S.W .3d 746, 754 (Tex. Crim. App. 2013) (Cochra n, J ., concur

ring ). I n the prese nt case , t h e court’s jury char g e did not include the instructions from

s ec t ion 2.05(a) (2) of the Penal Code to explain to the jury how to implement the presumpti o n submitt ed. The trial court’s failure to include these instructions was err or. See Hol l a n der , 414 S.W .3d at 749 n.9; Ramirez-M emije , 466 S.W .3d at 897; see also Tottenham , 285 S.W .3d at 31 (“The trial court was mandated to de liver a cha rg e settingforth the law

applicable to the case , and

a sec tion 2.05(a)( 2) instruction was both statutorily and constitutionally

require d.”).

Harm Anal

ysis Having found err or in the jury char g e, we must next consider whether appellant was harme d by the error. Appell an t co n ce d es that she di d not prese rve the complained- of j ury char g e

err ors at trial—she did not object to the inclusion of the instruction that a police of fice r is a public

serva nt, she did not object to the omission of the statutory definition of “g overnme nt” (or reque st its inclusion), and she did not object to the omission of the section 2.05(a) (2) instructions c oncer ning the statuto ry presumption (or reque st their inclusion). Consequently , reve rsal is require d only if the err ors resulted in eg reg ious harm. See State v. Ambrose , — S.W .3d —, No. PD-0143-15,

(D) if the jury has a rea sonable doubt as to the exis tence of a fac t or fac ts g iving rise to the presumption, the presumption fails and the jury shall not consider the pr esumption for any purpose. Tex. P enal Code § 2.05( a)( 2).

182016 WL 1696455, at *5 (Tex. Crim. App. Apr. 27, 2016) (re aff irming that under prec edent of Court of Criminal Appea ls “unpre serve d jury -cha rg e err or does not require a new trial

. . . unless the err or

cause s ‘eg reg ious harm’” ); Garrett , 220 S.W .3d at 932 (noting that mandatory -pre sumption err ors in jury char g e ar e s u b

ject to harmless-e rror revie w, and approving appellate court’s analy sis reg ardingeg reg ious harm).

J u ry char g e err or is eg reg iously harmful if it aff ects the very basis of the case , deprive s the defe ndant of a valuable r ight, or

vitally aff ects a defe nsive theory

. Marshall v. Stat e , 479 S.W .3d 840, 843 (Tex. Crim. App. 2016); Arrington v. State , 451 S.W .3d 834, 840 (Tex. Crim. App. 2015). “ Eg reg ious harm i s a ‘high and difficult s tandar d’ t o meet, and such a deter mination
must be ‘borne out by the trial rec ord.’” V i l l a r r eal , 453 S.W .3d at 433 (quoting Ree ves v. State , 420 S.W .3d 812, 816 (Tex. Crim. App. 2013)); see Nava v. State , 415 S.W .3d 289, 298 (Tex. Crim. App. 2013) (“[Eg reg ious harm] is a difficult standard to meet and require s a showing that the defe ndants wer e deprive d of a fair and impartial trial.”). We will not reve rse a conviction unless the d ef endant has suffe red “ac tual rathe r than theore tical harm.” Villarreal , 453 S.W .3d at 433; see Marshall , 479 S.W .3d at 843 (“[C] ourts are require d to examine the rele vant portions of the entire

re cord to deter

mine whether appellant suffe red actua l harm, as opposed to theore tical harm , as a result of the er

ror.” ); Cosio v. State , 353 S.W .3d 766, 777 (Tex. Crim. App. 2011) (“A n eg reg ious harm deter

mination must be bas ed on a finding of actua l rathe r than theore tical harm.” ). I n examining the rec ord to deter mine whether char g e err or has resulted in eg reg ious harm, we consider (1) the entire ty of t he jury char g e, (2) the s tate of the evidence, including the contested issues and

19weig ht of probative evidenc e, (3) the arguments of counsel, and (4) any other rele vant information

reve aled by the trial rec ord as a whole. Villarreal , 453 S.W .3d at 433; Almanza , 686 S.W .2d at 171. The Jury Charge

Abstrac t, or definitional, para g raphs in a jury char g e serve as a kind of g lossary to help the jury understand the meaning of conce pts and terms used in the application para g raph, which is that portion of the jury char g e that applies the pertinent penal law, abstrac t definitions, and g ener al legal p ri n ci p les to the particula r fac ts and the indictment alleg ations. Vasquez , 389 S.W .3d
at 366; Crenshaw v. State , 378 S.W .3d 460, 466 (Tex. Crim. App. 2 0 1 2 ); s ee Plata v. State , 926 S.W .2d 300, 302 (Tex. Crim. App. 1996), overruled on other ground s b y Malik v. State , 953 S.W .2d 234 (Tex. Crim. App. 1997). “I t is the application para g raph of t h e ch ar ge, not the abstrac t portion, that authorizes a conviction.” Crenshaw , 378 S.W .3d at 466.

I n this case , reg arding the alleg ed ag g ravated assault offe nse, the abstrac t portion of the jury char g e re ad as f

ollows:

A person commits the offe nse of ag g ravated assault ag ainst a public serva nt if the person commits an assault and uses or exhibi ts a deadly wea pon to a person the actor knows is a public serva nt while the public serva

nt i s lawfully discharg ing an officia l duty

. A person commits an assault if the person inte n t i o n all y , knowing ly or rec klessly cause s bodily

injury to another.

The application para g raph of the char g e instructed the jury that if it found from the evidenc e bey ond

a re asonable doubt that appellant

20did then and there intentionally , knowing ly or rec klessly cause bodily injury to J ohn

J ones by striking J ohn J ones wit h a mot or vehicle or by placing a motor vehicle in g ear and striking J ohn J ones with the m o tor vehicle, and [appellant] did then and there use or exhibi t a deadly wea pon, to-wit: a motor vehicle, during the commission of said assault, and [appellant] did then and there know that the said J ohn J ones was then and there a public serva nt, to-wit: a police office r, and that the said J ohn J ones was then and there lawfully discharg ing an officia l duty , to-wit: attempting to detain [appellant] then y ou will find [appellant] g uilty of the offe nse of ag g ravated assault ag ainst a public ser

vant as c harg ed in count one of the indictment.

The languag e contained in this application para g raph substantially trac ks the languag e of th e r e le vant sub s ec t i o n s o f section 22.02 of the Penal Code, which is the operative statute in this case , and eff ectively restric ted the jury ’s deliberations to the alleg ations in the indictment

. S ee Tex. Penal Code § 22.02(a) (2), (b)( 2)(B ). Thus, the trial court committed no err or with reg ard to the application para g raph in the jury

char g e. “Where the application para g raph corr ectly instructs the jury , an err or in the abstrac t instruction is not eg reg ious.” Medina v . State , 7 S.W .3d 633, 640 (Tex. Crim. App. 1999). Error in the abstrac t portion of the char g e will result in reve rsible err or only when it constitutes “an incorre ct or misleading statement of a law that the jury must unde rstand in or der to implement the commands of the application para g raph.” Crenshaw , 378 S.W .3d at 466 (citing Plata , 926 S.W .2d
at 302). The inclusion of a mere ly superf luous abstrac tion—one not nece ssary to an understanding of conce pts or terms contained in the application para g raph—“ never produce s reve rsible err or in the court’s char g e beca

use it has no eff

ect on the jury ’s ability to implement fairly and acc urate ly the commands of the application para g raph or para g raphs.” Plata , 926 S.W .2d at 302–03. L ikewise, the failure to g ive an abstrac t instruction, or definition, is reve rsible “only when such an instruction

21[or definition] is n ec es sary to a corr ect or complete understanding of conce pts or terms in the

application par

t of the cha

rg e.” Id. at 302. I n this case , even though the jury char g e contained err or in the abstrac t protion of the char g e—the addition of a superf luous a bstract instruction to the definition of “public serva nt” and the omission of the sta t u t o ry definition of the term “g overnme nt”—the balanc e of the char g e adequately set forth the elements of the offe nse and the application para g raph was leg ally corr ect in its application of the law to the fac ts of the case . The trial court proper ly instructed the jury in both the abstrac t portion and the ap p l i cation para g raph that to convict appellant of the assault offe nse char g ed it must find that the agg ravated assault was commit ted aga inst a publi c servant. Thus, as to these char g e err ors—the inclusion of the superf luous abstrac t instruction and the omission of the statutory definition—the jury

char g e does not support a finding of eg reg ious harm. Howeve r, reg arding the omitted section 2.05(a) (2) instructions conce rning the law

on t h e s t atutory presumption, nothing in the jury char g e informed the jury about the permissive
nature of the statutory presumption. See Tex. Penal Code § 2.05(a) (2); see, e.g. , Ramirez-M emije , 466 S.W .3d at 898 (“[N]othi ng in the jury char g e informed the jury that it was not bound to use the presumption.”). I n addition, nothi n g i n t h e j u ry char g e informed the j ury of t he S tate’s burden of proof on the fac ts underlying the statutory presumption. See Tex. Penal Code § 2.05(a) (2); see , e.g. , Hollander , 414 S.W .3d at 750 (“N owher e did the j ury char g e spec ifically inform t he jurors of t he deg ree of confide nce to which they must be convince d of the fac ts underly ing the presumption befor e they could return a g uilty verdic t.”). Although the jury char g e appropr iately instructed the jury about the S tate’s ge nera l burden to prove all the elements of t he offense bey ond a reasonable d o u b t , the

22Court of Criminal Appea ls has conclude d that this g ener al instruction alone is insufficient to reme dy

or ameliora

te the err or. See id. (“Such a g ener al instruction f ails to e ducate the jurors with respe ct to the level of confide nce they must have in the verity of the predic ate fac ts befor e they may rely on the presumption to convict.”)

. Acc ording ly , as to this char g e err or, the jury char g e supports a finding eg reg ious harm. See H

ollander , 414 S.W .3d at 750; Ramirez-M emije , 466 S.W .3d at 898–902. State of the Evidenc e

Wit h reg ard to the second fac tor, appellant’ s entire argument conce rning the state of the evidenc e s i m p l y ref

ers to her sufficie ncy claim in her first point of err or. See Villarreal , 453 S.W .3d at 433 (setting out fac tors to consider whe n reve iwing f or eg reg ious harm). I t fails to addre ss the state of the e vidence adduce d at trial.

Our revie w of the evidenc e at trial reve als that the undisputed evidenc e demonstrated that Offic er J ones was a public serva nt. He testified that he was a police off

icer and pea ce of

fice r employ ed by

the City of Killeen. In addition, the evidenc e—both his testimony and the dash-c am video—re flec ted that during his encounte r with appellant Offic er J ones wa s wea ring his officia l police uniform that ha d depar tmental patche s on it and also had his badg e display ed. There was no contra dictory evidenc e prese nted. Appellant never a tt e mp te d to d is p ute Offic er J ones’s status as a public serva nt. Sh e did not dispute the office r’s testimony about his employ ment as a patrol office r with the Killeen Police Depa rtment or sug g est that the video, which clea rly shows he is a police office r, wa s inacc urate . Appellant’s sole de fense was that she di d not act voluntarily or with the requisite mental state beca use she had been tased; her defe nse was not in any way related to Offic er Jones’s status as a public se rvant (or lack ther eof)

. 23Be cause the evidenc e demonstrating Offic er J ones’s status as a public serva nt (also the evidenc e supporting the predic ate fac t for the statutory presumption) was overwh el m i n g and uncontested, we conclude that the state of the evidenc e does not support a finding of eg reg ious harm.
Jury Argum ents

Next, we look at the final arguments prese nted by the State and appellant’ s attorney

. See Villarreal , 453 S.W .3d at 433 (including arguments of counse l as a fa ctor for consideration in eg reg ious harm analy sis). During the State’s closing argument, the prosec utor commented that none of the elements of the ag g ravated assault offe nse, with the exception of appellant’ s mental state, wer e in dispute. She argued that the evidenc e proved a ll of the eleme nts of the assault off ense char g ed, including that J ohn J ones wa s a “public se rvant:”

What do we know for a fac t? We know J ohn J ones suffere d bodily injury on J une 11th. We know that he was a peace office r. He’ s a publi c servant. Public serva nt is a police office r. And we know that he was attempting to de tain the defe ndant on that day

. The only thing that they are g oing to argue is her mental state: W h ether what she did wa s intentional, was it knowing, or was it rec kless.

I t is unclea

r whether , with that statement, the prosec utor was ref err ing to the superf

luous abstrac t instruction added to the “public serva nt” definition in the jury char g e (“A police office r is a public

serva nt.”), arguing the law (that as an office r or employ ee of a municipali t y or ag ency of the municipality , a city police office r qualifies as a public serva nt), or discussing the evidenc e prese nted
at trial (that beca

use J ohn J ones is a police office r for the City of Killeen, he is a public serva nt). I n any event, we note that this brief and minimal statement was the only ref ere nce to public serva

nt during jury argument. Moreove r, it was not contra ry to or inconsistent wi t h t h e statutory
24definitions of “public serva nt” or “g overnme nt” and does not mention or discuss the statutory public

serva nt presumption. I n his closing argument, defe nse counsel focuse d entirely on the def en s i v e theory —that app el l an t’s conduct was involuntary or acc idental (and there fore not intentional, knowing , or rec kless) beca use she had been tased—a nd never addre ssed the issue of whether Offic er Jones was a public se rvant.

Thus, althoug h there was a very brief m en t ion of Officer J ones’s status as a public

serva nt by the State, neither the State nor appellant argued the definition of either “public serva nt”

or “g overnme nt” or sug g ested that they wer e any thing other than as define d by t h e Penal Code. Fur ther, the parties did not mention, a nd cer tainly did not emphasize, the statutory presumption or reinfor ce it at all. The State’s jury argu m en t fo cused on appellant’ s mental state at the time she struck Offic er J ones with the stolen car

— in r e s p o n se to appellant’ s argument, which focuse d entirely

on her defe nsive theory that she did not volitionally hit the office r. The arguments of counsel do not support a finding of eg reg ious harm.

Other Rele vant Factors

As to the fourth fac tor, our revie w of the rec ord has disclosed no other rele vant information that re quires our c onsideration in the eg reg ious harm ana ly sis. Conclusion Regarding Harm

Ba sed on our revie w of the rec ord in this case , we hold that no eg reg ious harm resulted from the complained- of err ors in the jury char g e. See Gelinas v. State , 398 S.W .3d 703, 710

25(Tex. Crim. App. 2013) (re aff irming that Almanza harm analy sis “is a fac t specific one which should be done on a

case -by -ca se basis”)

. The rec ord in this case contains unquestionable evidenc e—including Offic er J ones’s testimony and the dash-c am video from his patrol car

— t h at o v erw helmingly established Offic er Jones’s status as a “public serva nt,” as that term i s statutorily define d. Fur ther, the r ecor d clea rly establishes that no dispute exis ted as to what constituted a public serva nt, nor was there any dispute about whether t he evidentiary fac ts sufficed to de monstrate that Of fice J ones, a municipa l police off icer and pea ce of

fice r, wa s a public ser

vant. On this rec o rd , i n view of the jury char g e submitt ed, the uncontrove rted evidenc e reg arding Offic er J ones’s status as a public serva nt, and the arguments of counsel, we conclude that althoug h the trial court err ed by adding an instruction to the statutory definition of “public serva nt” and by omitti ng the statutory definition of “g overnme nt,” such err ors in the jury char g e did not deny appellant a fair and i m p ar tial trial. Appellant did not suffe r eg reg ious harm as a result of these char g e er rors. Ac cording ly , we ove rrule a ppellant’s sec ond and third points of err or. Simi larly , we find that eg reg ious harm did not result from the omission of the section 2.05(a) (2) presumption instructions. I n undertaking our revie w, we are mindful of J udg e Cochran’ s observation in Hollander : “The re is a g rave likelihood that a jury char g e that does not contain the [S ection] 2.05(a) (2) inst ructions will cause eg reg ious harm to a defe ndant beca use of the serious constitutional pitfal l s i nvolved in using evidentiar y presumptions. Gene rally speaking , jury instruction err or involving presumptions that appea r to be mandatory wi l l ca u s e the defe ndant ‘eg reg ious harm’ beca

use they violate the constitutional require ment that the State p rove ever y

26element of an offe nse bey ond a rea sonable doubt.” Ho l l a n der , 414 S.W .3d at 756 (Cochra n, J .,
concur ring ). Howeve r, “[i] n an eg reg ious-harm analy sis [for the omission of the section 2.05(a) (2) presumption instructions] , the question is not simply whether , when viewed in the light most favor able to the verdic t, the jury could rationally have found predic ate fac ts to a level of confide nce bey ond a rea sonable doubt. Instead, a revie wing court must evalua te the likelihood, considering the

rec ord as a whole, that a proper ly instructed jury would have found the predic ate fac ts to the requisite level of confide nce.” Hollander , 414 S. W

. 3 d at 7 51. Given the overw helming and undisputed evidenc e in this case , it would not have been rational for a jury to harbor a rea sonable doubt that the State had established t h e p re dicate fac t in support of the statutory presumption, i.e. , that Offic er J ones was a public serva nt. Cf. i d

. at 752. Appellant did not suffe r eg reg ious harm as a result of this char g e er

ror. The ref

ore, w e over

rule a ppellant’s four

th point of error

.

CONCLUSION Having conclude d that the evidenc e is sufficie nt to support the jury ’s verdic ts of g uilt and that the complained- of err ors in the jury char g e did not cause appel l an t egre g ious harm, we aff irm the trial cour

t’s judgme nts of conviction.

__________________________________________ Melissa Goodwin, Jus tice Be fore Chief J ustice Rose, Jus tices Goodwin a nd Bour land Affir med Filed: June 10, 2016 Do Not Publish 27