## In the Court of Appeals Second Appellate District of Texas

at Fort Worth

_____________

______________ No. 02

- 19

- 00396

- CR

_________

__________________

On Appeal from the 432nd District Court Tarrant County, Texas Tr ial Court No. 1514816D

Before Womack and Wallach, JJ. ; and Lee Gabrie l ( Senior Justice, Retire d,

Sitting by Assign ment) M emorandum Opi nion by Justice Gab riel 

### W ALTER 

### L EE 

### G REEN 

### J R


### . AKA 

### W ALTER 

### G REEN 

### J R


### . , Appellant

V


### . T HE 

### S TATE OF 

### T EXAS2 MEMORANDUM OPINION A jury convicted appellant Walter Lee Green Jr. of the offense of continuous violence again st the family. In three issues on appeal, Green complains about er ror in the jury cha rge. In his fourth issue , Gree n challenges the propriety of the prosecutor ’ s closing arg ument
. We find no merit as to each issue and affirm the judgment

. I. BACKGROUND 1
Green was indicted in one coun t for the third

- d egree felony offense of

con tinuous violence against t he family. See Tex. Penal Code Ann. § 25.11

. The indictment charged that Green committed two separate assaults ca u sing bodily injury agai nst Jill , 2 a person with whom Green had a dating relatio nsh ip , and that the two

ass aults occurred in a period of time that is 12 months or less. The indictment further
contained a habitual offender notice alleging that Green had two sequential prior
felon y convictions

. The two prior felony alle gations enhanced G reen ’ s po ssible punishment range fro m that of a third

- degree felony to a te rm of “ life or for any term of not more than 99 years or les s than 25 years. ” Id

. § 12.42(d). Gre en pled not guilty

to t he offense c harged befo re the jury and not true to the felony allegation s in the
habitual offende r n otice before the court.

1 Green does not challenge t he sufficiency of the State ’ s evidence a ga i ns t him ; therefore , we will d ispense wit h a lengthy recitation of the factual backgr ound and reserve discussion of th e facts only as needed to resolv e the issues raised

.

2 We use an alias to refer to Green ’ s former girlfriend, who m the indictment identif ie d b y name.3

The jury found Green guilty of continuous violence against a family member.
After a punishment trial, the court found the two pri or fel ony allegatio ns to be true
and assessed Green ’ s pun ishm ent at 45 years ’ confinement in the Texas Department of Criminal J ustice. Green brought this appeal.
II
. DISCUSSION On appeal, Green argues in his first issue that the tri al court erred by not
in cluding the definition of “ dating r elationship ” in t he court ’ s charge and in his
second issue that the trial court erred by including the definitions of “ family , ” “ fami ly
violence , ” and “ household ” in the charge. Gr een morphs his sec ond i ssue into his

t hird by arguing that includin g those defi nitions allowed t he jury to convict on theories of guilt not contained in the indictment. Green acknowledges that there were no objection s to the court ’ s charge. In his fou rth issue, Green cites numerous

sta tement s made b y the prosecutor in clos ing argu m ent that he c omp lains were fals e and argued th eories not pled in the indictment. Recognizing that there were also n o objections made a t t rial to the pro secutor ’ s closing argument s , Green argues th at there
can still be reversible error if the argu ment is manifestly improper or injects new and
harmful facts.
III
. JURY CHARGE
Duri ng the charge confer ence at the end of the gu ilt

- innoce nce phase of trial,
Green ’ s trial c ounsel affirmativ ely stated that the charge con tained “ everything we4

asked for

. . . and we are happy with the charge as written now. ” 3 Green personally
addressed the trial co urt and , against th e advi ce of counsel , r equest ed t he inclu sion of
the lesser

- included offens e of assault

– b odily injury of a fa mily member for e ach of the
two alle ged assaults that formed the basis of the greater charge. The trial court
gr anted Green ’ s request
. Gr een made no further addition al requests nor did he
f urther object to the court ’ s ch arge .

A. STANDARD OF REVIEW
W e mu st review “ all alleged jury

- charge error

. . . regardless of preservation in
the trial court

. ” Kirsch v. State , 357 S.W.3 d 645, 649 (Tex. Crim . App. 2012). In
review ing a jury charge, we first determine wheth er error occurred; if not, our analysis
ends. Id. I f error occurred, whether it was preserved determines the degree of harm required for r eversal. Id. Unprese rved c h arge error warrants reversal only when the

e rror resulted in egregious ha rm. N ava v. State , 415 S.W.3d 289, 298 (Tex. Crim App.
2013 ); Almanza v. State , 686 S.W.2d 15 7 , 171 (Tex. Crim. App. 1985) (op. on reh ’ g.);

s ee Tex. Code Crim . Proc. Ann. a rt. 36.19

. T he appropria te inquiry for egregio us h arm is fact

- and case

- spec ific. Gelinas v. State , 398 S.W.3d 703, 710 (Tex. Crim. App. 2013 ); Taylor v. State , 332 S.W.3d 483, 489 (Tex. Crim. App. 2011).

3 The court found Green was indigent and appointed counsel to represe nt h im

. Green f iled a multitude of pro se motions while his case was pending , including motions declaring a conflict with his then

- cou nsel and requests fo r substitution of
co un sel

. At the time of trial, Green was repre sented by his fi fth court

- appointe d attorn ey.5

In making an egr egious

- harm determination, we must c onside r “ the actual
de gree of harm

. . . in ligh t of the entire jury charge [ and] t he state of the evidence, including the cont ested issues and weight of probative evidence , the argument of counsel and any other relevant informatio n revealed by the record of the t rial as a
whole. ” Alma nza , 686 S.W.2d a t 171. See generally Gelinas , 39 8 S.W.3d at 708

– 10 (applying Almanza

). Errors that result in egregious harm are those “ that affect the very basis of the case, dep rive the defendant of a valuable righ t, vita lly af fect the defensive theory , or make a case for conviction clearly and signific antly more persuasive. ” Taylor

, 332 S.W

. 3d at 490 (citin g Almanza , 686 S.W.2d at 172). The purpose of this review is to illumina te the a ctual, not just theoretical, harm t o the
accused. Almanza , 686 S. W.2d at 174.

B
. OM ISSION OF DEFINITION
Green first complains that the trial court erred by failing to inclu de the statutory definition of “ d ating relationship ” in the abstract portion of the charge. A
trial court is statut orily obligated to instruct th e jury on the “ law applicable to the

case , ” which incl udes statutory definitions that affect the elements of t he offense charg ed. Tex. Code Crim Proc. Ann. a rt. 36.14 ; Taylor , 332 S.W.3d at 486 ( “ [

T ] he judge ’ s duty to instruct the ju ry on the law applicable to the case exist s even when
defense counsel f

ails to obje ct to inclu sions or exclusions in the charge

. . . . ” ) . The
trial court is “ ultimately responsible for the accuracy of the jury charge and6

acc ompanying ins tructions. ” Tayl o r , 332 S.W.3d at 488 (quo ting Delgado v. S tate , 235 S.W.3d 244, 249 (Tex. Crim . App. 2007)).
In this cas e, Green was charged with co n tinuous violence against the fam ily. The Penal Code pr e scribes the off ense of continuous vi olence against the family : A pe rson commits an offense if, during a perio d that is 12 months or less in duration, the person two or mor e ti m es engages in conduct t hat constitutes an offense under Section 22.01(a)(1) against another person or persons w hose relationsh ip to or associ ation with the defendant is described by Section 71.0021(b ), 71.003, or 71.005 , Family Code.
Tex. Pen al Code Ann. § 25.11

. T he definitio n of “ family ” under this statute includes those persons in a d ating re lationship. Tex. Fam

. Code Ann. § 71.0021 (b) (d efinin g

“ dating relationsh ip ” as a “ re l ationsh ip between individuals who have or had a

con tinuing relationship of a romantic or intimate n ature ” )

. There was no dispute in
the evidence that Green and J ill had been in a dating re lationship nor does Green ra ise
th at as an issue on appea l or chal lenge th e sufficiency of the evidence.
Because the t erm “ dating relatio nship ” has been s tatutorily d efined in the Family Code and extended to the Penal Code in the continuous

- violence

- agains t

- t he family offense , the tr ial co urt ’ s failure to include the def inition in the charge was error.
Since this error w as not preserved at trial, Green is entitled to reversal only if the error resulted in egregious harm. See Nava , 415 S.W.3d at 298. We d iscuss harm below

.7 C. INCLU SION O F DEFINITIONS
G reen complain s in his sec ond issue that t he charge included definitions in the abstract porti on of the court ’ s cha rge of the terms “ family , ” “ family violence , ” and

“ household , ” which were not relevant to the cha rged offense. It is true that the
indictment in this case alleged only tha t Jill was a person with whom Green had a dating rel ationsh ip. While a family membe r or household member may be the victim
of continuous violence against the family , that was not the case here . It was therefore
error for the trial court to include these definition s. Again, we must determine
whether Green su ffered egregious harm.
D . HA RM ANALYSIS
In thi s case, the jury charge ref l ects that the trial court properly instructed the jury in the a bstrac t paragraph concerning the ele ments of t he offense charge d as follo ws: A person commits the offense of continuous vio lence against a family member if, during a period tha t is 12 months or less in duration, the person two or more times engages in co nduct that con stitutes the offense of assault c a us ing bodil y injury again st another person or persons who are members of the same family or househo ld or is a person w it h whom the defendant had a dating relationship.
T he appli cation paragraph of the ch arge instructed the jury that if it foun d from the evidence beyond a reasonable doubt that Green , during a period of time that is 12 months or less i n duration, did then and there engage in conduct that constitute d assault bodily injury, specifically : on or about the 20t h day of September , 2017 , did intentionally or kn owingly cause bod il y injury to [Jill] , [ a

] person wi th8

whom the d efendant had a dati ng relationship, by pushing, striking or grabbing her with t he defendant ’ s hand , and on or about the 14 th d ay of May , 2017, did then and there int e ntionally or knowingly cause bodily injury to [Jill

] , a person with whom the defendant had a dating relations hip , by striking her or grab bing her with the defendant ’ s hands, then you will find the defendant gui lty of [continuous] violence again st the famil y as charged in the indic tment. Despite the fact that the term “ dat ing relationship ” was not defined in the

court ’ s charge , the charge adequately described the offense and included all the
elem ents
. In the court ’ s final charge , a conviction was not authorized without

re quiring the jury to find all elements of the offense charged . This includes a finding
that Green and Jill were in a dating relationship. Indeed , the applic ation paragraph
narrowed th e optio ns, directing the jury that it could o nly find Green guilty if it found
he was in a dating relationship with Jill

.

“ Our courts have held that when a stat utor y definition is not included in the jury charge ‘ it is assume d the jury would consider th e comm only understood meaning
in its deliberat

ion s. ’ ” Lovings v. State , 376 S.W.3d 32 8, 338 (Tex. App.

— Houston [14 th
Dist. ] 2012, no pet.) (quoting Olveda v. Stat e , 6 50 S.W.2d 408, 409 (Tex. Crim. App. 1983)). “ Dating relation ship ” is defined as a relati onship between individuals who
have o r have ha d a continuing relationsh ip of a romantic or intimate natur e. See Tex.
Fam

. Code Ann. § 71.0021. The statutory def

init ion of dating relationship is not complex or unusual , and
the definition is much like the commo n meaning of the wor ds. “ [ T ] he combined
dict ionary meanings of the t er ms ‘ date ’ and ‘ relationship ’ r eflect a commonly9

un derstood meaning of the phrase ‘ dati ng r elationship ’ that closely resemb les the [ Texas Family C ode S e ction 71.0021 ( b ) ] statutory defini tion of ‘ dating relationsh i p . ’ ”
Leach v . State , No. 03

- 13

- 00784

- CR, 2 015 WL 8607060, at *5 (Tex. App.

— Austin Dec. 9, 2015 , no pet.) (mem. o p. , not designate d fo r publication ); see Granger v. State , 584 S.W.3d 571 (Tex. Ap p.

— San Antonio 2019, no pet. ) ( hol ding that the jury could reasonably dete rmine based on the common meaning o f “ dating relationship ” that the
defendant and the v

i ctim were in a dating relatio nshi p as de fined by Texas Family
Code S ection 71.0021(b) ).
Ba sed on a review of the entire t rial r ecord, including the undisputed ev idence
that Green and Ji ll were in a dati ng relationship and the common meaning of that
term, we conclude the record does n ot s upport a showing o f egregious harm f or failure to include a d e finition of that term in th e char ge . 4 We overrule Green ’ s first
issue.

4 Jill testified that she and Green had a “ dating relationship ” for almost two ye ars and at times held themselves o ut as hu sband and wife while they were liv i ng tog et her

. A thorough review of the test imony reveals that the defens e never c ontested or questioned that testimo ny and that the only witness called by the defens e did not dispute that there was a dating relati onsh ip between G r een and Jill

. In fact, t he defe ns e w

i tness testified that Green and Jill lived together. Green ’ s defensive theories were instead li mited to disputing that the alleged assault s actu ally occurred as Jill claimed and that the in j urie s she claimed to suffer were not the result of an assaul t. G r een ’ s trial counsel ’ s final argument only cont ested that t he physical evidence and common sense did not support Jil l ’ s t estimony c on cernin g the assault and asserted that the poli ce did not adequately inv estigate the alle gations when made

.10

Gr een further co m plains that he was egregiously harmed by the trial court ’ s inclusion of the definit ions of “ family, ” “ fam ily violence, ” and “ household ” because
those terms were not r el ated to the conduct charge d in t he indictment. A definitional
instructio n that goes beyond the allegations in the indictment will not present reversible error if the charge ’ s application o f la w to the facts limits the jury ’ s deliberations to the al legat ions in the indictmen t. See Toler v. State , 546 S.W.2d 290,
293

– 94 (Tex. C rim

. App. 1977)

. Here, the definitions contained i n the jury charge set forth the general law , including a br oader de sc ripti on of the offense of continuous violence against th e fami ly . But the application par agraph correctly instructed the jury
to find Gre en guilty only if it believed he assaulted Jill and she was a person with
whom he had a dat ing relationship. “ W here t he application paragraph correctly instructs the jury, an er ror in the abstract instruct ion is not egregious. ” Medina v. State , 7 S.W.3 d 633 , 640 (Tex. Crim. App. 1999); Plata v. State , 926 S.W.2d 300, 302

– 03 ( Tex. Crim. App. 1996 ) ( “ The inclusion of a m e rely superfluous abstraction

. . . never produces reversible erro r in the court ’ s char ge b eca use it has no effect on the jury ’ s ab ility fairl y and accurately to implement the commands of the application paragraph

.

. . . ” ) , overrule d in part on other groun d s by Malik v. State , 953 S.W.2d 234, 239

– 4 0 (Tex. Crim. App. 1997 ) ; W

right v. State , No. 02

- 1 5

- 0039 9

- CR, 2016 W L 6520189 , at *5 (Tex. App.

— Fo r t Worth Nov. 3, 2016, no pet.) (mem. o p. , not design ated for publication. )

.11

This is the point where Green ’ s seco n d and third issues converge. 5 In his third issue, Green summaril y argues that “ the harm in t his ch arge is that it permits
conviction on a th eo ry not alleged in the indictment, that is [,] that a fam ily member or household member may be the victim of the o f fense , although a dating relationship victim is alleged in the in dictment. ” In ass essing harm in this case , we must consider
the a rguments of counsel. Almanza , 686 S.W.2d at 171. G reen complains that the
State ’ s argument misdirected the jury to believe that it could find Green guilty upon a finding th at he committed assault

– bodi ly inj ury to a nother person who was a member
of t he same family or household , instead of a person wit h whom he had a dating
relati onsh i p . In final argument, the pr osec utor told the jury that the word “ ‘ or ’ means options. ” The argument t hen sp ecific ally guided the jury to two examples of wh en

“ or ” is used in the charg e
–– first, in the option s pertaining to the manner of the
assault and , second, in the verdict form. Neither of th e se references touched upon the categ ory of the victim

. The State also e xplained in its closing that continuous
fa mily violence is “ t

wo individual offenses that put together make a felony

. ” In so explaining, the prosecutor said, “ [ A ] ssault [

– ] bodily injur y to a family member happ ening one time. Assault [

– ] bod il y injury t o a fa mi ly member happening a second
time in a 12

- m o nth time span to gether is the charge

. ” Green argues that the se

5 Green ’ s fo urt h issue will also factor into this discussion.12

comments o f the pr o secutor exacerbated the error o f including the a b strac t instruction ref

e rring to persons of the same family or h ouseh old and would have
authorize d the jury to find G reen guilty of an offense not alleged in the indictmen t
. A s discussed above, t he abstract instructions did not allow the jury to consider
other t h eories of gui lt not al leg ed i n the indictment. Consider ing th e entire record, it
is clear that the State di d not rely on any theory other than that Green and Jill were in a dating relationship. This is not a case wher e any err or “ affect[ed] the very bas i s of the case, ” “ deprived t he defe ndant of a valuab le right, ” or “ v i tally affect[ed] a defens e theory. ” Cosio v. State , 353 S.W.3d 766, 777 (Tex. Crim. App. 2011) (citation and internal quotation marks omitted )

. As the Court of Criminal Appeals has stat e d,

“ [ T ] he charg e before us, i n the application of the law to t h e fact s [,] e ffectively restricts the jury ’ s delibera tion to only those allegation s contained in the indictment. ” Grady v.
State , 61 4 S.W.2d 830 (Tex. Crim App. 1981). The excerpted part of t h e S t at e ’ s

a rgument does not change that. We ov errule issue s two and three.
IV. CLOSI NG A RGUMENT In his final issue, Gre en comp lains that th e State misstated fac t s and argu ed facts and theories that were not pled in the indictment . Implicitly acknowled g ing that
there were no objections made at trial to any of the complained

- of argum ents, Green argues th at error was not forfeite d b ecause t he arguments were m anifestly improper,
harmful , and prejudicial.13

To preserve a complaint for our review, a party mu s t ha ve p resented to the trial court a timely objectio n that states the gr ounds for the desi r ed ruling if t hey are not
appare nt from the con text of the objection. Tex. R. App. P. 33.1 (a)(1); Douds v. State , 472 S.W.3d 670, 674 (Tex. Crim. App. 2015) . Fu rt her the trial court must hav e ruled on the objection, eith er expre ssly o r implicitly , or the complaining part y must have
ob jected to the trial court ’ s refusal to rule. Tex. R. App. P. 33

. 1(a)(2); Ever itt v. State , 407 S.W.3d 259, 262

– 63 (Tex. Crim. App. 2 013 ). We cannot address the merits of an
issue that has not been prese r ved for appeal. Ford v. State , 305 S. W.3d 530, 532 (Te x. Crim. App. 2009).
The Texas Court of Criminal Appeals and this court hav e consistently and repeatedly applied R

ule 33.1(a) ’ s p res erv ation requirements to jury arguments. Tex. R. App. P. 33.1( a)(1) ; s ee

, e.g. , Estrada v. State , 313 S.W.3d 274, 303 ( Tex. Crim. App. 2010) ; Threadgill v. State , 146 S .W. 3d 654, 667 (Tex. Crim. App. 2004) ( “ Appellant did not object to the pr osecutor ’ s ar gum ent and therefore failed to pr eserve error. ” ); Hopper v. Sta te , 48 3 S.W.3d 235, 237 (Tex. App.

— Fort Worth 2016, pet. ref ’ d ) ( “ Hopper did not object to the second argument and, therefore, for feited any error arising from this argument by the prosecu to r. ” )

. “ Indeed, thi s court and other
i ntermediate courts have reco gnized that the preservation requirements apply even
when the State ’ s argument is egregious. ” Will iams v. State , No. 02

- 1 7

- 00 165

- CR, 201 8
W L 359916 , at * 2 (Tex. App.

— For t Worth Jan. 11, 2 01 8 , pet . ref ’ d ) (mem. o p. , not designate d for publication )

.14

Green made n o objections to the prosecutor ’ s argument and faile d to satisfy
the preservation requirements of Rule 33.1(a). We hold that he for feited his

co mplaint , and we overrule his fourth is su e. V. CONCLUSION Having overruled each of Green ’ s issues, we affi rm the trial court ’ s judgment.

/s/ Lee Gabriel Lee Gabriel Justice
Do Not Publish T ex. R. App. P. 4 7.2(b)
Delivered : April 1 5 , 2021