COURT OF APPEALS

SECOND DISTRICT OF TEXAS

FORT WORTH

NO. 02-10-00079-CR

TINA MARIE BAKER APPELLANT

V.

THE STATE OF TEXAS STATE

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FROM THE 355TH DISTRICT COURT OF HOOD COUNTY

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MEMORANDUM OPINION1

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Appellant Tina Marie Baker appeals her conviction for burglary of a 

habitation. In two points, she argues that the evidence is insufficient to support 

the jury‘s verdict and that the trial court erred by failing to define an element of 

the offense in the jury charge. We affirm.

 

1See Tex. R. App. P. 47.4.
2

Background Facts

The State’s version of the facts

On January 29, 2009, Zach Oakley, a high school student, lived at a house 

on Bentwater Parkway in Granbury. That night, Zach and his mother, Dana 

Baker, were inside the house‘s open attached garage while they were packing a 

moving truck. Zach‘s stepdad and Dana‘s husband, Anthony Baker, was 

sleeping in his room. Zach‘s cousin, Kayla, was packing boxes in the kitchen.

At about midnight, appellant, who is Anthony‘s ex-wife, arrived at the 

house, threw eggs at the moving truck, yelled an obscenity at Dana, and ran into 

the garage. Appellant grabbed Dana‘s hair and pulled her to the ground, and 

Zach ran into the house, called 911, and woke up Anthony.2 When Zach came 

back to the garage, he saw appellant and Dana fighting on the ground while 

Kayla and Anthony were trying to pull them apart.3

Anthony eventually pulled appellant off of Dana, and when Zach told 

appellant that the police were coming, appellant quickly left in a car with Bryan 

Anderson, who had come to the house with her. Because Zach had given the 

dispatcher the car‘s license plate number, the police found appellant and Bryan.

Appellant, who smelled like alcohol, admitted that she had thrown eggs at the 

moving truck. She also initially told an officer that she had been assaulted by 

 

2

The State introduced a recording of the 911 call.

3Dana said that there was ―hair all over the garage,‖ that she was ―hurt 

badly,‖ and that she was sore with bruises for a couple of days after the fight.
3

three females but later told the officer that she was assaulted by two females and 

a male. When another officer searched the car that appellant and Anderson 

were in, he found an open alcoholic drink and unopened alcoholic drinks. 

Anthony, Dana, Zach, and Kayla gave statements to a Hood County Sheriff‘s 

Department sergeant, and the sergeant directed appellant‘s arrest.

Appellant’s version of the facts

On January 29, 2009, appellant and Bryan became drunk. Appellant 

bought some eggs, threw them at Anthony‘s motorcycle shop, and then went with 

Bryan to the Bentwater Parkway house. When they arrived there, appellant 

became upset and threw eggs at the moving truck. She then heard Dana yell, 

―Bring it on, bitch,‖ and Dana and appellant moved toward each other.4 Appellant 

met Dana outside the garage, at which time Kayla pushed appellant from behind.

Appellant held Dana‘s hair to defend herself while Dana, Kayla, and Anthony

kicked and punched her. Appellant and Bryan eventually left and were stopped 

and arrested while they were on their way to the sheriff‘s department to report 

what had happened.

5

 

4Dana denied making that statement.

5Bryan testified that he stayed in his car while appellant threw eggs at the 

truck, but then he heard appellant screaming, saw some commotion, and found 

appellant on her back in the garage while she was being beaten by Dana and 

Kayla. Bryan conceded that he did not personally know who started the fight 

between Dana and appellant.
4

Procedural history

A grand jury indicted appellant for burglary of a habitation. Appellant pled 

not guilty, but a jury found her guilty. After hearing evidence on punishment, the 

jury assessed eight years‘ confinement and a $6,000 fine but recommended 

suspension of that sentence so that appellant could be placed on community 

supervision. The trial court signed a judgment incorporating the jury‘s 

punishment recommendation, and appellant filed notice of this appeal.

Evidentiary Sufficiency

In her first point, appellant argues that the evidence is insufficient to show 

that she committed burglary.

Standard of review and applicable law

In our review of the sufficiency of the evidence to support a conviction, we 

view all of the evidence in the light most favorable to the prosecution to 

determine whether any rational trier of fact could have found the essential 

elements of the crime beyond a reasonable doubt. Jackson v. Virginia, 443 U.S. 

307, 319, 99 S. Ct. 2781, 2789 (1979); Clayton v. State, 235 S.W.3d 772, 778 

(Tex. Crim. App. 2007). This standard gives full play to the responsibility of the 

trier of fact to resolve conflicts in the testimony, to weigh the evidence, and to 

draw reasonable inferences from basic facts to ultimate facts. Jackson, 443 U.S. 

at 319, 99 S. Ct. at 2789; Clayton, 235 S.W.3d at 778.
5

The trier of fact is the sole judge of the weight and credibility of the 

evidence. See Tex. Code Crim. Proc. Ann. art. 38.04 (Vernon 1979); Brown v. 

State, 270 S.W.3d 564, 568 (Tex. Crim. App. 2008), cert. denied, 129 S. Ct. 2075 

(2009). Thus, when performing an evidentiary sufficiency review, we may not reevaluate the weight and credibility of the evidence and substitute our judgment 

for that of the factfinder. Williams v. State, 235 S.W.3d 742, 750 (Tex. Crim. 

App. 2007). Instead, we Adetermine whether the necessary inferences are 

reasonable based upon the combined and cumulative force of all the evidence 

when viewed in the light most favorable to the verdict.@ Hooper v. State, 214 

S.W.3d 9, 16–17 (Tex. Crim. App. 2007).

Paragraph two of the indictment alleged that appellant ―did then and there 

intentionally or knowingly, without the effective consent of Dana Baker, the owner 

thereof, enter a habitation and did attempt to commit or commit assault.‖

See Tex. Penal Code Ann. § 30.02(a)(3) (Vernon 2003).6 The penal code states 

that a ―habitation‖ includes ―each separately secured or occupied portion of the 

structure‖ and ―each structure appurtenant to or connected with the structure.‖ 

Id. § 30.01(1) (Vernon 2003); see White v. State, 630 S.W.2d 340, 342 (Tex. 

App.—Houston [1st Dist.] 1982, no pet.) (holding that a house‘s attached garage 

 

6Paragraph one of the indictment alleged an alternative theory of burglary; 

it stated that appellant ―did then and there intentionally, without the effective 

consent of Dana Baker, . . . enter a habitation with intent to commit assault.‖ 

See Tex. Penal Code Ann. § 30.02(a)(1). However, the jury charge instructed 

the jury only about paragraph two.
6

was a habitation under the penal code‘s definition). An ―owner‖ includes 

someone who has possession of property ―or a greater right to possession of the 

property than the actor.‖ Tex. Penal Code Ann. § 1.07(a)(35)(A) (Vernon Supp. 

2010); Ronk v. State, 250 S.W.3d 467, 470 (Tex. App.—Waco 2008, pet. ref‘d).

Analysis

Appellant argues that the State failed to prove that (1) she intended to 

assault Dana inside a habitation, (2) the garage was not open to the public, and 

(3) appellant went into the garage voluntarily (she asserts that she was pushed 

into it). The facts recited above presented the jury with conflicting theories about 

how appellant entered the garage and whether she assaulted Dana or merely 

defended herself. But in our evidentiary sufficiency review, we must presume 

that the jury resolved any conflicting inferences in favor of the prosecution and 

defer to that resolution.7 Jackson, 443 U.S. at 326, 99 S. Ct. at 2793; Clayton, 

235 S.W.3d at 778.

If the jury believed the witnesses called by the State and disbelieved 

appellant‘s and Bryan‘s testimony, it could have rationally determined that 

appellant ran into the open garage, grabbed Dana‘s hair, and pulled her to the 

ground, causing her pain. This evidence shows that appellant attempted to 

commit or committed assault in the garage. See Tex. Penal Code Ann. 

 

7

The jury had reasons to disbelieve appellant‘s testimony because she 

admitted that she was drunk on the night in question and that she had initiated 

the dispute that night by throwing eggs at the motorcycle shop and moving truck.
7

§ 22.01(a)(1) (Vernon Supp. 2010) (stating that a person can commit assault by 

intentionally, knowingly, or recklessly causing bodily injury to another); 

id. § 1.07(a)(8) (stating that ―bodily injury‖ includes ―physical pain‖); see also

Thomas v. State, 303 S.W.3d 331, 333–34 (Tex. App.—El Paso 2009, no pet.)

(holding that the evidence was sufficient to prove assault when a wife felt pain 

after her husband pushed her, slapped her back, and caused her to stumble).

Appellant also notes that the garage was open and ―[a]nyone could freely 

walk up and into‖ it. But appellant has not cited authority showing that the 

garage‘s door being open changed its status as a habitation. Cf. White, 630 

S.W.2d at 341–42 (holding that a garage that did not have a front door was a 

habitation even though it was not enclosed); see also Tennyson v. State, No. 11-

92-00107-CR, 1993 WL 13141619, at *2 (Tex. App.—Eastland June 24, 1993, no 

pet.) (not designated for publication) (holding that an attached carport, which was 

open on three sides, qualified as a habitation). Also, even though appellant lived 

at the Bentwater Parkway house before she divorced Anthony, Dana and 

Anthony testified that appellant did not have permission to be in the garage, and 

Anthony said that he had told appellant not to come there. Appellant admitted

that she knew that Dana did not want her to be there. Thus, the jury could have 

rationally found that despite the garage‘s door being opened, it qualified as a 

habitation that appellant did not have consent to enter.
8

For all of these reasons, we hold that the evidence is sufficient to support 

appellant‘s conviction. See Jackson, 443 U.S. at 319, 99 S. Ct. at 2789; Clayton, 

235 S.W.3d at 778. We overrule appellant‘s first point.

Jury Charge Error

In her second point, appellant contends that the trial court erred by failing 

to define ―assault‖ in the jury charge when the jury had to find that appellant 

attempted to commit or committed assault to convict her of burglary.

Standard of review and applicable law

A person commits assault when the person intentionally, knowingly, or 

recklessly causes bodily injury to another; intentionally or knowingly threatens 

another with imminent bodily injury; or intentionally or knowingly causes physical 

contact with another when the person knows or should reasonably believe that 

the other will regard the contact as offensive or provocative.8 Tex. Penal Code 

Ann. § 22.01(a). Appellant did not object to the omission of an assault definition 

at trial.

Appellate review of error in a jury charge involves a two-step process. 

Abdnor v. State, 871 S.W.2d 726, 731 (Tex. Crim. App. 1994); see also Sakil v. 

State, 287 S.W.3d 23, 25–26 (Tex. Crim. App. 2009). Initially, we must 

determine whether error occurred; if it did, we must then evaluate whether 

 

8Courts have held that the variations of assault comprise different offenses. 

See Dolkart v. State, 197 S.W.3d 887, 893 (Tex. App.—Dallas 2006, pet. ref‘d).
9

sufficient harm resulted from the error to require reversal. Abdnor, 871 S.W.2d at 

731–32.

If there is error in the court‘s charge but the appellant did not preserve it at 

trial, we must decide whether the error was so egregious and created such harm 

that the appellant did not have a fair and impartial trial—in short, that Aegregious 

harm@ has occurred. Almanza v. State, 686 S.W.2d 157, 171 (Tex. Crim. App. 

1985) (op. on reh=g);9see Tex. Code Crim. Proc. Ann. art. 36.19 (Vernon 2006); 

Allen v. State, 253 S.W.3d 260, 264 (Tex. Crim. App. 2008); Hutch v. State, 922 

S.W.2d 166, 171 (Tex. Crim. App. 1996). Egregious harm is the type and level of 

harm that affects the very basis of the case, deprives the defendant of a valuable 

right, or vitally affects a defensive theory. Allen, 253 S.W.3d at 264 & n.15;

Olivas v. State, 202 S.W.3d 137, 144, 149 (Tex. Crim. App. 2006); Almanza, 686 

S.W.2d at 172.

In making an egregious harm determination, Athe actual degree of harm 

must be assayed in light of the entire jury charge, the state of the evidence, 

including the contested issues and weight of probative evidence, the argument of 

counsel and any other relevant information revealed by the record of the trial as a 

whole.@ Almanza, 686 S.W.2d at 171; see generally Hutch, 922 S.W.2d at 172–

 

9Appellant argues that the trial court‘s failure to define assault was a 

―fundamental error.‖ Courts have indicated that a ―fundamental error‖ is one that 

has caused egregious harm under Almanza. See Jefferson v. State, 99 S.W.3d 

790, 793 (Tex. App.—Eastland 2003, pet. ref‘d); Thomas v. State, 849 S.W.2d 

405, 406–07 (Tex. App.—Fort Worth 1993, no pet.).
10

74. The purpose of this review is to illuminate the actual, not just theoretical, 

harm to the accused. Almanza, 686 S.W.2d at 174. Egregious harm is a difficult 

standard to prove and must be determined on a case-by-case basis. Ellison v. 

State, 86 S.W.3d 226, 227 (Tex. Crim. App. 2002); Hutch, 922 S.W.2d at 171

A trial court must give a jury ―a written charge distinctly setting forth the law 

applicable to the case.‖ Tex. Code Crim. Proc. Ann. art. 36.14 (Vernon 2007). 

Thus, the trial court must instruct the jury on ―each element of the offense or 

offenses charged and include in its charge each statutory definition that affects 

the meaning of an element of the offense. If a phrase, term, or word is statutorily 

defined, the trial court must submit the statutory definition to the jury.‖ McIlroy v. 

State, 188 S.W.3d 789, 797 (Tex. App.—Fort Worth 2006, no pet.) (citation 

omitted); see Arline v. State, 721 S.W.2d 348, 352 n.4 (Tex. Crim. App. 1986); 

Harkins v. State, 268 S.W.3d 740, 742–43 (Tex. App.—Fort Worth 2008, pet. 

ref‘d).

Analysis

The trial court did not define assault in its jury charge although that term is 

statutorily defined. See Tex. Penal Code Ann. § 22.01(a). Therefore, the State 

concedes, and we hold, that the trial court erred by not defining assault. 

See McIlroy, 188 S.W.3d at 797; see also Lindsay v. State, 102 S.W.3d 223, 230 

(Tex. App.—Houston [14th Dist.] 2003, pet. ref‘d) (holding that a trial court erred 

by not defining ―criminal responsibility‖ when that term was statutorily defined).
11

―An erroneous or incomplete jury charge, however, does not result in 

automatic reversal of a conviction.‖ Abdnor, 871 S.W.2d at 731. Appellant 

contends that she suffered egregious harm because the jury was ―left with 

nothing but an inference of what constitutes an  ̳assault.‘‖ But although the jury 

did not receive the definition of assault in the jury charge, the State provided the 

definition during voir dire, in which the following colloquy occurred:

[THE STATE]: . . . Can you think of a law, Ms. Burns, that 

would -- that we have about protecting your body? What are you 

protected from by the law?

VENIREPERSON: Assault.

[THE STATE]: Okay. Assault. Getting hit. And we‘re going 

to talk more about assault. . . . So we consider that very important 

that -- that your body is protected from unwanted intrusions by other 

people, I guess, just like your home is protected. . . .

. . . .

[THE STATE]: Okay. I want to get you comfortable with this 

idea, because it is rather unusual for most people.

And what is an assault? And this is important, too, to know 

this, because, again, what you see on TV and what you hear might 

be two different things. 

Mr. Frederick, does it make sense to you that the definition, 

the legal definition of assault is intentionally o[r] knowingly causing 

bodily injury to someone? Does that make sense?

VENIREPERSON: Yeah.

[THE STATE]: That pretty much what you thought it was 

going to be?

VENIREPERSON: Uh-huh.
12

[THE STATE]: Did you know that the Texas definition of 

bodily injury is physical pain, something that causes physical pain?

Have you ever heard that?

VENIREPERSON: No I didn‘t, no.

[THE STATE]: What did you have in mind as far as bodily 

injury goes? What did you think that was? Bleeding?

VENIREPERSON: Marks, bruising.

[THE STATE]: Okay. And that‘s one way to commit bodily 

injury. But the definition of bodily injury in Texas says something 

that causes pain. . . .

. . . .

[THE STATE]: . . . If the person who‘s been assaulted says, 

―That caused me pain,‖ then that is enough for assault.

. . . .

[THE STATE]: . . . So in this case we’re talking about

intentionally or knowingly doing something that causes physical 

pain, okay, intentionally or knowingly doing something that causes 

physical pain. [Emphasis added.]

We conclude that the jury‘s receipt of the correct definition of assault during voir 

dire mitigated possible harm of that term being undefined in the jury charge. 

See Fulcher v. State, 274 S.W.3d 713, 717 (Tex. App.—San Antonio 2008, pet. 

ref‘d) (explaining that in ―considering whether jury charge error caused egregious 

harm, we consider . . . counsels‘ statements during voir dire and at trial‖); 

Cormier v. State, 955 S.W.2d 161, 163–64 (Tex. App.—Austin 1997, no pet.)

(holding that there was no egregious harm from the trial court‘s failure to define a 

term in a punishment-phase jury charge because there was ―no reason to believe 

that the jury did not remember the earlier definition‖ that it had been given); 
13

Jones v. State, 850 S.W.2d 236, 240–41 (Tex. App.—Fort Worth 1993, no pet.)

(concluding that there was no egregious harm from a jury charge that gave an 

incomplete instruction about parole law when the State correctly explained the 

application of parole law to the jury in its final argument); see also Mouton v. 

State, 892 S.W.2d 234, 237 (Tex. App.—Beaumont 1995, pet. ref‘d) (holding that 

there was no egregious harm even though a jury charge on aggravated robbery, 

which required theft to be committed as an underlying offense, did not define 

theft).

Also, the ―state of the evidence, including the contested issues and the 

weight of the probative evidence,‖ shows that the trial court‘s omission of an 

assault definition was not egregiously harmful. See Allen, 253 S.W.3d at 264. 

The evidence prompted the jury to believe either the State‘s factual theory or 

appellant‘s factual theory, and it therefore created a conflict, but not an 

ambiguity, on whether an assault occurred. The jury could have decided either 

that (1) appellant obviously committed assault because she ran into the garage, 

pulled Dana by her hair to the ground, and caused her pain (including bruising 

and soreness), or (2) appellant obviously did not commit assault because after 

appellant threw eggs at the moving truck, Dana, Kayla, and Anthony beat 

appellant up. Thus, the jury could have determined that appellant did not 

intentionally, knowingly, or recklessly cause bodily injury to Dana (and therefore 

did not assault her) only if it believed appellant‘s version of the facts; the jury did
14

not have any basis to believe the testimony of the State‘s witnesses and still 

conclude that the elements of assault did not occur.

In other words, there is no act that appellant allegedly committed in this 

case that straddles the line on the penal code‘s definition of assault; she either 

committed assault (according to the State‘s witnesses) or did not commit assault 

(according to her own witnesses). By returning a guilty verdict, the jury indicated 

its choice to believe the State‘s witnesses; the jury therefore would have almost 

certainly convicted appellant even if the definition of assault had been provided. 

Stated another way, the trial court‘s failure to define assault did not vitally affect 

appellant‘s defensive theories that she had consent to enter the garage or that 

she did not initiate the physical contact with Dana. See id. at 264 & n.15.

For these reasons, we hold that the trial court‘s error of not defining assault 

in the jury charge did not cause egregious harm. See Almanza, 686 S.W.2d at 

171–72. We overrule appellant‘s second point.

Conclusion

Having overruled both of appellant‘s points, we affirm the trial court‘s 

judgment.

TERRIE LIVINGSTON

CHIEF JUSTICE

PANEL: LIVINGSTON, C.J.; MCCOY and MEIER, JJ.

DO NOT PUBLISH

Tex. R. App. P. 47.2(b)

DELIVERED: November 24, 2010