Affirmed as Modified in Part, Reversed and Remanded in Part, and Opinion filed October 10 , 2023
.

In The 

## Fourteenth Court of Appeals

NO. 14

- 22

- 00135

- CR

LANDON JOHNSON , Appellant
V. THE STATE OF TEXAS , Appellee
On Appeal from the 230th District Cour t H arris County, Texas Trial Court Cause No. 1620605

O P I N I O N Appellant Landon Johnson appeals his conviction for aggravated assault of a security officer by threat

. A jury found appellant guilty and assessed his punishmen t at 45 years in prison . In hi s first issue , appellant contends that the

e vidence was insufficient to sustain his conviction because there was no evidence he threatened complainant or that complainant was a security officer . In his second issue, appellant contends that the jury char g e erroneousl y failed to include the2 statutory definiti on of security officer and stated that a security officer is a public servant. Concluding the evidence was insufficient to establish the complainant was a security officer and the trial court erred in its submi ssion of the jury charge, w e

m odify the judgment and remand to the trial court for a new sentencing hearing. Background Appellant was charged with aggravated assault of a securi ty officer for intentionally and knowingly threatening complainant Mi chael Fre eman with imminent bodily injury and using or exhibi ting a deadly weapon, namely a firearm , during the commission of the offense

. Evidence ind icated that Freeman was working secu rity at a night club in the early hour s of February 2, 2019, when
app ellant ar rived at the club and struck a security manager. Aft er Freeman separated the two men , Freeman retrieved a gun out of a vehicle and held it until appellant left the s cene. A fter police came and went from the club , ap pellant

r eturned carrying a rifl e
. Appell ant mov ed toward Freeman and other people standing o utside the club, pointed the rifle at Freeman, and began firing . Freeman glanced toward appellant and attempted to run as the others in front of the club also

ran , but Freeman only made it a coup le of ste ps before collapsing to the ground

. Appellant shot F reeman f ive times and also shot anot her person working security for the club. T he relevant events were captured by the club ’ s s urveillance video equi pment and shown to the jury.
As will be discu ssed in m ore detail below, the jury charge equated being a

se curity officer to being a public servant and then repeatedly used the latter term in instructing the jury and quer yin g whether appellant was guilty of a crime. The judgment of conviction , however , states th at appellant was convicted of aggravated assault on a security officer.3 Sufficiency of the Evidence
As s tated, in his first issue, appellant chall enges the sufficiency of the evidence to support his conviction , specifically asserting that the re was no

ev idence he threatened Freeman or that Freeman was a s ecurity officer. In assessing the suffici enc y of the evid ence to support a conviction , we must consider all the evidence in the light most favorable to the verdict and determin e whether, based on that evi dence and reasona ble inferences therefrom, a rationa l trier of fact coul d have found the chal len ged element o r elements of the crime beyo nd a reasonable doubt. See Whatley v. State , 445 S.W.3d 159, 166 (Tex. Crim. App. 2014); se e also Jackson v . Virginia , 443 U.S. 307, 318

– 19 (1979). In reviewing historical facts that support conflicting inference s, we presume th at the jury resolved any con flicts in the State’s favor and defer to that resolution. Whatley , 445 S.W.3d at 166. We do not sit as a th irteenth jur or and may not su bstitute our judgment for that of t he factfinder by ree valuating the weight and credibility of the evidence. Isassi v. S tate , 330 S.W.3d 633, 638 (Tex. Crim. App. 2010). As judge of the credibility of the witnes ses, a jury may choose to be lieve all, some, or none of the testimony presented. Cain v. State , 958 S.W.2d 404, 407 n.5 ( Tex . Crim. App. 1997). As stated, appellant was charged with aggravated assault of a security officer by threat. See Tex. Pen al Code § 22.02(b)(1) (E)

. A mong other possibilities, a person commits the offense of aggra vated assault “if the person commits assault as defined in § 22.0 1 and the person

. . . uses or exhibits a deadly weapon during the commission of the assault.” Id

. § 22.02(a)(2). A person com m its assault as de fined in section 22.01 , among other options, “if the person

. . . intent ionally or knowingly threate ns another with imminent bodily injury.” Id

. An aggravated assault offense is elevated from a s econd

- degree felony to a firs t

- degree felon y if it4 is “ against a person the actor knows is a security officer while th e officer is
pe rforming a du ty as a security officer. ” Id . § 22.02(b)(2)(E). The offense can also be elevated to a first

- degree felony if it is “ against a person the actor k nows is a public servant while the public servant is lawfully discharging an official duty

. ” Id

. § 22.02(b)(2)( B ). “We measure whether the evidence presented at trial was sufficient to support a conviction by comparing it to ‘the elements of the offense as defined by the hypothetically correc t jury charge f or the case.’ ” Hernandez v. State , 556 S.W.3d 308, 312 (Tex. Crim. App. 2017) (quoting Malik v. State , 953 S.W.2d 234, 240 (Tex. Crim. App. 1997)). “A hypothetically correct jury charge is ‘one that

accur ately se ts ou t the law, is authorized by the indictm ent, does n ot unnecessarily increase the State’s burden of proof or unnecessarily restrict the State’s theories of liability, and adequately describes the particular offense for which the d efendant
was tr ied.’ ” I d . ( quoting Malik , 953 S.W.2d at 240).
Threa tened. Appellant first asserts that t here was no evidence that he threatened Freeman prior to the shooting. The Penal Code does n ot define

“ threaten ” in this context. A threat , however, can be verbal or n onverbal

. See Smith v. State , 286 S.W.3d 333, 343 (T ex. Crim. App. 2009)

. Additionally , “ there is no statutory requirement that a victim must instantaneously perceive or rec eive th [ e] threat of imminent bodily injury as the actor is performing it. ” Olivas v. State , 203 S.W.3d 341, 350

– 51 (Tex. Crim. App. 20 06)

. As numerous courts have held , the act of pointing a gun a t someone can cons titute threatening conduct, as can the act of fir ing a gun at someone. See, e .g. , Mitchell v. State , 546 S.W.3d 780, 786 (Te x. App.

— Hous ton [1st Dist.] 2018, no pet.) ( “ The act of pointing a loaded gun at someone, by itself, is threatenin g conduct that supports a conviction for aggravated assault. ” ) ; Par ker v. State , 489 S.W.3d 609 , 613 (Tex. App.

— Texarkana 2016 , no5 pet. ) ( “ [T] he jury was free to

. . . infer that [defendant] int entionally or knowingly pointed the shotgun at [complainant] , thereby threatening him with imminent bodily injury

. ” ) ; Jefferson v . State , 346 S.W.3d 254, 257 (Tex. App.

— Houston [14th Dist.] 2011, pet. ref ’d) ( hol ding evidence defendant discharged firearm i nto home support ed conviction for aggravated assault by threat ) ; Robbins v. State , 145 S.W.3d 306, 314 (Tex. App.

— El Paso 2004, p et. ref ’ d) ( holding e vidence defendant fired a gun in the officer ’ s directi on estab li shed aggravated assault) ; Dickerson v. Sta te , 745 S.W.2d 401, 403 (Tex. App.

— Houston [14th Dist.] 19 87, pet. ref ’ d) (“The pointing of a gun alone establishes the threat.”)

. Here, there was evidence a ppellant point ed a rifle at Freeman, fired mult iple sho ts at him, and , indeed, shot him five times

. Th is is clear evidence on which the jury could conclude that appellant threatened Freeman with imminent bodily inju ry
. See, e.g. , Mitche l l , 546 S.W.3d at 78 6 ; Jefferson , 346 S.W.3d at 257 ; Robbins , 145 S .W.3d at 314

. 1 We therefore overrule appellant ’ s fir st issue in part. Security officer. Appellant next contends that the evidence was insufficient to support the conclusion that Free man was a security officer at the time of the assault. As mentioned, if t he actor kn ew the co mplainant was a security officer

1 Appellant cites McGo wan v. State , 664 S.W.2d 355 (Tex. Crim. App. 1984) , and Benjamin v. State , 621 S.W.2d 617 (Tex. Crim . App. 1981) , as su pporting the conclusion that no threats were made in this case. However, both cases are readily distingu ishable fr om the present fac ts. In McGowan , the C ourt held that the evidence was insufficient to prove assault by threat where the complainant was stabbed in the back of the head and did not see the knife prior to being stabbed. 664 S.W

. 2 d at 357. In Benja min , the C ourt held that the evi dence was insufficient to prove assault by threat where the complainant was “ a bystander who was struck by a stray bullet

. ” 621 S.W. 2 d at 619. Here, there was evidence appellant pointed a rifle and fired at Freeman a fter an altercatio n in which both me n we re involved. Freeman and others ran from appellant as appellant was po inting and firing the rifle . This case is not remotely similar to M cGowan or Benjamin . We additionally note that the Court of Criminal Appeal s ha s explained that McGowan d oes not stand for the proposition that the State must prove that the complainant perceived a threat in order to establish the elements of a ssault by threat

. Olivas , 203 S.W.3d at 342

– 351 (leaving resolution of that issue open) ; se e also Dobbins v . State , 2 28 S.W.3d 761, 766 & n .6 (Tex. App.

— Houston [14th Dist.] 2007 , pet. dism ’ d ) (discus sing O livas and McGowan ).6 performing a duty as a security officer at the time of the offense, it elevates an aggravated assault offense from a second

- degree felony to a first

- degree felony

. See Tex. Penal Code § 22.02(b)(2)(E) . S ection 2 2.02 defines “ security officer ” a s either “ a commissioned sec urity officer as defined by Section 1702.002, Occupations Code, or a noncommissioned security officer registered under Section 1702.221, Occupations Code

. ” Id

. 22.02( d )(2) . The State conc edes tha t it failed to produce evidence t hat Freeman was either commi ssioned under section 17 02.002

or registered under section 1702.221. Indeed, a lthough there was evidence Freeman was working security for the club on the morning in question, there wa s

no evidenc e he was a co mmissioned or regis tered securi ty officer as re quired by the statute. See id

. Accordingly, we sustain appellant ’ s first i ssue in part. Our disposition of the appeal in light of this holding will be discussed below after we address appe llant ’ s complaints regarding the jury ch arge. The Ju ry Charge
In his second issue, appellant complains that the trial court erroneously (1) failed to include the statutory definition of security officer in the jury charge and (2) instructed that a security officer is a public servant

. Simply put, the jury charg e is riddled wi th errors. Not only is appel lant correct that the charge failed to incl ude the statutory definition of sec urity officer and erroneously instructed that a security officer is a public servant, i t also repeatedly mis represent ed the charged offense as aggravated assa ult on a public servant rath er than the act ual charged offense of aggravated assault o n a security officer

. The key question here is not whether the charge contains error but wh ether th e error is harmful

. We must review “all alleged jury

- c harge error

. . . r egardless of preservation in the trial court.” Kirsch v. State , 357 S.W.3d 645, 649 (Tex. Crim. App. 2012). In a criminal case, we review complaints of jury charge error in two steps. C ortez v.7 State , 469 S.W.3d 593, 598 (Tex. Crim. App. 2015). First, we d etermine whether error exist s in the charge. Ngo v. State , 175 S.W.3d 738, 743

– 44 (Tex. Crim. App. 2005). If not, our analysis ends. Kirsch , 357 S.W.3d at 649. Second, we review the

r ec ord to determine whe ther sufficient harm was caused by the error to req uire reversal of the convict ion. Id . The degree of harm necessary for reversal depends on whether the appellant preserved error by objecting to the charge. Almanza v. State , 686 S.W.2 d 157, 171 (Tex. Crim. App. 1984) (op. on reh ’ g). When charge error is no t preserved, as in this case , reversal is not required unless the resulting harm is egregious. Id .; see also Tex. Code Crim. Proc. art. 36.19; Arrington v. State , 451 S.W.3d 834, 840 (T ex. Crim. App. 2015)

. Charge error is e gregiously ha rmful when it affec ts the very basis of the

cas e, deprives the defendant of a valuable right, or vitally affects a defensive theory. Sanchez v. State , 209 S.W.3d 117, 121 (Tex. Crim. App. 2006). That is , the error must have been so harmful that the defenda nt was effectively denied a fair and impartial trial. Almanza , 686 S.W.2d at 172. Egregious harm is a difficult standard to prove and must be determined on a case

- by

- case basis. Hutch v. State , 922 S.W. 2d 166, 171 (Tex. Crim . App. 1996). Under Almanza , the record must show t hat the charge error caused the defendant actual, rather than merely theoretical, harm. Ngo , 175 S.W.3d at 750. Neither party has the burden to show harm. Reeves v. State , 420 S.W.3d 81 2, 816 (Tex. Crim. A pp. 2013).
A trial court is stat utorily obligated to instruct the jury on the l aw applicable to the case. V illarreal v. State , 286 S.W.3d 321, 329 (Tex. Crim . App. 2009) (citing Tex. Code Crim. Proc. art. 36.14 )

. T hat obligation “requ ir es that each
statut ory definition that affects the m eaning of an element of the offense must be

com municated to the jury.” Id

. (quoting G. Dix & R. Dawson, Texas Practice: Criminal Practice and Procedure § 36.11 at 562 (2nd ed. 2001) )

.8 Under the Penal Co de , while a person conceivably could be both a securit y officer and a public servant, a security offi cer is not a public servant simply by virtue of being a security officer. Compare Tex. Penal Code § 1.07(a)(41) (defining “public servant”) and id

. § 22.02 (d)(2) ( defining “security officer”) ; se e also Ortiz v. Stat e , 623 S.W.3d 804, 815 (Tex. Crim. App. 2021) ( Keller, P.J., dissenting) (d iscussing the alternative elevating elements of section 22.02 and noting , “In a given case, a victim could be both a publ ic serva nt and a security officer.”). Here, as stated above, the trial court erred in fail ing to incl ude th e statutory definition of se c urity officer in the jury charge , instruct ing the jury that a security officer is a public servant, and repeatedly repre sent ing the charged offense as aggravated assault on a public se rvant rather than the act ual charged offense of aggravated assault o n a sec urity officer . We note that all of these errors , however, relate to the elevating element of whether the complainant was a security officer (which elevated the offense from a second

- deg ree felony to a first

- degree felony) and not to the basic underlying offens e of aggravated assault by threat. Appellant does not raise any complaints regarding the charge submission on the basic underlyin g offense of aggravated assault

. As also d iscussed a bove, the State failed to offer any evidence in this case to establis h that Freeman was a securit y officer as that term is defined by section 22.02. With these thoughts in mind, we turn to the proper disp osition of this appeal. Disposition
Under the Court of Criminal A ppeals ’ opinion s in Thornton v. State and Bowen v. State , when a court deter mine s that evidence is insuf ficient to support a conviction, the court may reform the judgment to r eflect a convict ion for a lesser

included offense. Thornton , 425 S.W .3d 289, 299

– 300 (Tex. Crim. App. 2014)9 ( discussing Bowen , 374 S.W.3d 427 , 428

– 32 (Tex. Crim. App. 2012) ) ; see also Lang v. State , 664 S.W.3d 155, 163 (Tex. Crim. App. 2022) (discussing Th ornton and Bowen )

. The purpose of such reformation is “to avoid the ‘unjust’ result of an outright acquittal ” and to respect the factfinder ’ s determination of guilt. Thornton , 425 S.W.3d at 298, 300

. Accordingly, c ourts shoul d limit reformation to when the reformed judgme nt is for a lesser offense the commission of which c an be
esta blished from facts the jury actually found. Id . at 298

– 99

. R eformation is typically proper when the lesser included offense is authorized by the indictment

. Walker v. State , 594 S.W.3d 330, 340 (Tex. Crim. App. 20 20)

. After finding the evidence i nsuff icient to support the conviction and determining the alternative offense is a lesser

- included offense of the charged offense, reformation to the lesser

- included offense is required if the reviewin g

c ourt can answ er yes to two questions: ( 1) in convict ing the defendant of the greater offense, must the jury have necessarily found every element necessary to convict for the lesser

- included offense ? A nd , ( 2) wa s sufficient evidence add uc ed at trial to supp ort a conviction for the lesser

- included offense ? La ng , 664 S.W.3d at 163 ; Thornton , 425 S.W.3d at 300

. If the answer to either of these questions is no,
t he judgment should not be reformed and the defendant should be acquitted

. Lang , 664 S .W.3d at 163

. Th ese Thornton questions h elp prevent “arbitrary depri vation of liberty based upon charges never filed while also ensuring tha t the State carries its burd en to prove each element of the charged offense beyond a reasonable doubt.” Walker , 594 S.W.3d at 338. M oreover, the standards s erve to “give effect” to the verdict “by tying reformation to what the jury necessarily found when i t reached that verdict.” Id

. In summary, reformation is required to a lesser

- included offense when a reviewing court determines that : (1) the evidence wa s insufficient to support the10 c onviction ; (2) there is a lesser

- inclu ded offense of the grea ter offense the defendant was convicted of ; (3) the factfi nder , in convicting the defendant of the greater offense, necessarily found every ele ment required to convict him of the le sser - included offense ; (4) the evidence was sufficient to support a conviction for the lesser

- included offense

. Lang , 664 S.W.3d at 163

– 64. In the present case , we determined above that the evidence was insufficient
to support appellant ’ s conviction for aggravated assau lt of a security officer by threat because the State offered no evidence that Freeman was a security officer

. Aggravated assault by threat is a lesser

- included offense of aggravated assaul t of a security officer by threat because it requires proof of exact ly the same elements except for the elevating element of the complainant being a security officer

. Compare Tex. Penal Code § 22.02 (a) with i d . § 22.02(b)(2)(E) ; see also Thornton , 425 S.W. 3d at 298

– 99 ; Lave rn v. State , 48 S.W.3d 356, 361 (Tex. App.

— Houston [ 14th Dist.] 2001 , pet. ref ’ d ) (en banc). I n finding appe llant guilty in this case, the jury necessarily found every element required to convict him of aggravated assault by threat. And, the evidence is su fficient to support a conviction for that lesser

inc luded offense. As discussed above, appellant was clearly shown in an altercation that in volved Freeman at a nigh t club ; after which, appellant returned to the club carrying a rifle , move d toward Freeman a nd other people standing outside the club, pointed t he rifle at Freeman, and b egan firing. Freeman glanced toward appellant and attempted to run , as others in front of the club also ran, but Freeman only took a couple of steps before coll apsing to the grou nd. Appellant shot F reeman five times and also shot another person worki ng security for the club. Under Thornton , Bowen , and Lang , we are therefore required to reform the judgment to show a conviction for the lesser

- included offense of ag gravated assault b y threat. Lang , 664 S.W.3d at 163

– 64 ; Thornton , 425 S.W.3d at 300 ; Bowen , 37411 S.W.3d a t 428

– 32

. Of course, in this case , there was also er ror in the jury charge. T he Court of Criminal Appeals has also applied its Thornton and Bowen reason ing to reform a

co nviction in a case involving jury charge erro r that only affected the jury submission on an e lement that elevated an offense from a second

- d egree felon y to a first

- degree felony

. Arteaga v. State , 521 S.W.3d 329 , 340 (Tex. Crim. App. 2017 ), superseded by s tatute on other grounds as stated in Lopez v. State , 600 S.W.3d 43, 46 (Tex. Crim. App. 2020)

. The Court recognized that the typical remedy for harmful jury charge error is to reverse the conviction and remand for a new trial , but the Cou rt again noted tha t “ if the harm suffered by the defendant due to char ge error can be remedied by a different, less drastic remedy,

. . . then a defendant should not get the windfall of a new trial at the expense of us urping the role of the factfinde r. ” Id . (citing Thornton , 425 S.W.3d at 298 , and Almanza , 686 S.W.2d at 171 )

. As discussed above, t he jury charge error in the present case likewise only affected the submission on an elevating element

— in this case the questi on of whether Freeman was a “ security officer

. ” Thus , ev en a ssuming egregious harm, the remedy for such erro r would be reformation of the judgment to show a conviction for the lesser

- included offense of aggravated assault

. Because both th e insufficiency of the evidence regarding the elevating element and the ch arge error relat ing to the elevating element should result in the reformation of appellant ’ s conviction, we will reform appellant ’ s conviction to th e lesser

- included offense of aggravated assault

. In each controlling case discussed above , i.e., Lang , Arte a ga , Thornton , and Bowen , upon reforming the convicti on or ordering the conviction reformed, the Court of Criminal Appeals has also remanded for a new sentencing hearing. Lang ,12 664 S.W.3d at 176 ; Arteaga , 521 S.W.3d a t 341; Thornton , 425 S.W.3d at 30 7 ; Bowe n , 374 S.W.3d a t 432. The State urges in the present case, however, that such a remand is not necessary because (1) the punishment range would be the same on remand due to the fact appellant ’ s conviction is enhanced by two prior convi cti ons , and (2) the co urt can “ be fairly assured that the error had no mor e than a slight influence on the punishment verdict , ” citing Texas Penal Code section 12.42(d) , Texas Rule of Appellate Procedure 44.2(b), and McGowen v. State , 25 S.W.3d 741, 746 (Tex. App.

— Houston [14th Dist.] 2000, pet. ref’d)

. We disagree with the Stat e ’ s analysis and conclusion . Reformation of a conviction under Lang , Arte aga , Thornton , and Bowen inherently involves changing the nature of the offense for which punishment is being as sessed

. Even thou gh the range of punishment may be the same due to enha ncements under section 12.42, the nature of the offense for which sentence is being assessed in the particular case is in some way less serious after reformation than the offense for wh ich the original fa ctfinder assessed punishment

. For example, here, the original jury was asked to assess punishment for the offense of aggravated assault of a public s ervant, but the reformed offense is simply aggravated assault. 2 A jury might consider th e “ public servant ” (or “ security officer ” ) fac tor to elevate the
nature of the crime in much the same way as the legislature did in passing the relevant amendments to Penal Code section 22.02. Accordingly, w e believe the best course of action is to remand for a new sentencin g hearing , just as the Court of Criminal A ppeals has done in the controlling cas es. See Lang , 664 S.W.3d at 176 ; Arteaga , 521 S.W.3d a t 341; Thornton , 425 S.W.3d at 30 7 ; Bowen , 374 S.W.3d a t 432.

2 As discussed, this submission was error, as the j ury should have been asked about aggravated assault of a security off i c er , not aggr avated assaul t of a public servant

.13 Conclusion
We modify the judg ment to ref lect conviction for aggravated assault an d remand to the trial court for a new sentencing hearing

.

/s/ Frances Bourliot Justice

Panel consists of Justices Bourliot, Hassan, and Poissant. Publi sh

— T EX

. R

. A PP

. P. 47.2( b).