### TEXAS COURT OF APPEALS, THIRD DISTRICT, AT AUSTIN

NO. 03
- 21
- 00437
- CR

Jerry Neill Sharpe , Appellant

v. The State of Texas , Appellee

FROM THE COUNTY COURT AT LAW OF BURNET COUNTY NO. M33653, THE HONORABLE LINDA M. BAYLESS , JUDGE PRESIDING

M E M O R A N D U M O P I N I O N
The jury found Jerry Neill Sharpe guilty of ass ault with bodily injury and family violence based on his spanking of his teenaged daughter with his belt

. See Tex. Penal Code § 22.01(a) (1). The court assesse d sentence consis te nt with the jury ’ s verdict at 365 days in jail suspended for a two

- year term of community supervision. Sharpe contends on appeal that the trial court erred by omitting an instruct ion he did not request regarding paren tal duty to discipline children and th e law prohibiting sta te agencies from viola ting parent s’ fundamental duty to direct the upbringing of their child. Sharpe further contends that the court erred by re fusing to instruct the jury as he requested that “ the fa c t that a child is spanked on i ts own does not evidence family viol ence. ” He also contends that legally insuf fic ient evidence supports the guilty verdict. W e will affirm the judgment.2 BACKGROUND Sharpe admits that h e spanked his then

- fifteen

- year - old daughter , D, by hitting her with h is firefig ht er ’ s unif orm belt while atte mpting to discip line her. P hotograph s show bruis es on several parts of D ’ s body that witnesses testified were consistent with belt strikes. The contested issue at trial and here was whether his use of fo r ce w as rea so nable

. We wil l

summar ize the test imon y to provide context for the reasonableness determination , fo cusing primarily on testimony by D an d Sharpe because they were the only occurrence witnesses.
D

— twenty years old at the time of trial

— testified as did Sha r p e
. Oth e r wit nesses included Depar tmen t of Family and Protective Services investigator Kristin Cantu, Burnet County Sher iff ’ s Deputy Brian Richey, Burnet County Sheriff ’ s Investi gator Kathy Sievers, and Sha rpe ’ s sister , who lived with Sharpe and D until a few wee k s before the incident and was tele phoned during the incident. Sharpe and D h ad a confrontation on October 5, 2016, followed by a tense two weeks and leading to the October 19, 2016 interaction at issue in this case

. Sharpe did not approve of D spe nding tim e with an almost

- eight een - year - o ld boy . O n October 5, 2016, D forged Sharpe ’ s signature on a note re questing release from school for a non

- exist ent doctor ’ s appointment and telephoned Sha rpe to ask permission to study then to s tay over night at a frien d ’ s house, when instead sh e sp en t that time with her boyfriend ; as part of the sch eme, D had her boyfriend impersonate the grandfather on the phone with Sharpe. When Sharpe suspected something was amiss and drove over to speak to the “ friend ’ s ” grand fathe r ab out the sleepover , D m et S harpe outside of a dark, locked house, lied that she was going to the back of the house to get the grandfather , and fled to her boyfriend at his grandparents ’ house without the grandparents ’ knowledge

. Sharpe calle d the sheri ff ’ s office for help in fi ndin g D , and th e next3 morning the boyfriend ’ s grandmother took D to the sheriff ’ s office. While t here, D reportedly yelled at Sharpe , “ I hate you, I will do any and everything I can to get away from you. ” S he was
upse t w he n she was forbidden to see her b oy fr ie nd

. K athy Sievers interviewed D after the October 5 incident while working as a Burnet County S he r iff ’ s Invest igator . Si evers testified that the boy f rien d ’ s gr a ndmother brought
D in because she claimed Sha rpe h ad punch ed, hit, and kicked her, knoc ke d her down , and sat on her. B ut Sievers saw no mark s on D consistent with that claim. She said that , w hen D yelled at Sharpe in the office , h e responded calmly at first, raising his voice to try to be heard. Siever s testif ied that D ’ s mother denied th e co mp laina nt ’ s allegation that she had seen Sharpe strangle the mother ; the mother des cribe d the complainant as a “ drama queen. ” T he inves tigator testified, however, that the pictures from after the October 19 incident did no t r eflect appropria te discipli n ary action by a parent against a fifteen

- year - old girl. On October 19 , 2016, D went to school early for basketball practice, took the PSAT, had tutorials over her lunch period instead of eating , then had basketball prac tice a fte r scho ol until about 6:30 or 7 p .m. Sharpe picked her up from school, they got food at Sonic, and they went home. She sat on the living room floor to watch television and eat. Sharpe told her to change the channel, but she did not like his prog rammin g c hoice s . He told her again t o ch ange the channel, and she tossed the remote when he asked for it

— she and Sharpe differed only on whether she tossed it to him or out in front of herself ; she ad mit ted that tossing th e r emote was a bit “ snotty ” and “ de fian t ” with a little “ teenage attitu de. ” He yelled at her to s top eating and to go to bed. As she tried to take another bite, he shoved her hamburger in her face and then into her h air as she turn ed her face. She testi fied that she then tried to go to her r oo m, but he testified that she c on tinued to defy him by try ing to get food from the kitchen. D testified that Sha r pe4 grabbed her by the throat such that she could barely breathe. She pushed his arm away and made what she testified was a “ snotty ” commen t to get a way from him.
D went to h er bed, and Sha rpe told her to ge t up and put her arms around a pole in the middle of the room ; she did not comply because she did not want to get hit. He told her he was going to hit her three time s and that, if she m oved , she wo uld get three more. She tried to escape, but was trapped

. She testified that S harpe sometimes hit her with the belt and buckle on her backside, her arms, legs, chest, feet, and hands. She said she was on her back , curled into a ball with her fee t up tr y ing t o kick him away. Sh e asked him to stop, but he told her he was doing it out o f love not anger ; D testified, however , that his whole body wa s tense and almost shaking and his face was red. She said , “ It was rage. ” She asked him to look i n th e mirro r and see if he looked l ik e love o r r age; he stopped for a second, then continued to yell at her, tried to get her to stand at the pole, and k ept trying to h it her. Eventually, he picked her up and tossed her on her back and she curle d into a defen sive pos ture on her back

. A t th e t ime, she weigh ed 110 pounds. Sharpe was a fir efighter. She estimated that the spanking took about an hour and estim ated that he hit her between thirty and forty ti mes ; she said that the welts and red marks from some of the swat s dissipated by the next da y when pictures were taken. She said t he spanking hurt a lot. D testified that Sharpe then wrapped her finger because he thought he might have broken it and gave her ice for her legs. He told her to go t o bed, then to ld her to come and watch

a debat e o n television with him. S he watched it for about an hour and a half then went to bed without having eaten more. After she went to bed, he came an d got i nto bed with her, which did not make her feel better.5 D testified th at Sharpe took her to school t he ne xt morning and told her not to tell anyone. A friend saw a bruise on her wrist then took her into the locker room, ma d e her strip, took pictures of the marks on her body, then made her go to the c ounselor ’ s off ice. She

ev entually went to the hospital w he re more pictures wer e taken. D testified that the hospital staff feared she had internal bleeding , but she did not. She testified that she was on bed rest for about a week and that the bruises lasted well over a month. D testifi ed that she loves Sh ar p e but wanted him to be held accountable . She said his actions were not okay. Sharpe testi fied tha t, whe n he requested the remote cont rol on October 19, D slapped it in his hand when he asked her to put it i n h is hand. H e sa id they had a tug

- of

- war ove r h er backpack after he sent her to her room because she had snacks in it. Befo re he spanked D on October 19 , he called his sister on the phone for help. When his daughter talked badly about him to his sister , he threatene d to call th e sheriff ’ s departme n t so th ey could watch him spank her , but he decided against that. He said that while spanking D he h eld his belt double d with the two

en d s in his hand and never let the buckle out of his hand

. When D refused to turn aroun d so he coul d spank her b uttocks , h e attempted to spank her from the side . He said her arm got hi t when she grabbed the belt to prevent it from hitting her butt ; she also jammed her finger w he n she released the belt and grabbed him and tried to throw h im to t he groun d. He testified tha t h e then whipped her feet out from under her then gently laid her on her back, but she started kicking him in the chest as he tried to spank her

. She eventually sat down and started praying , he gave her
two m ore swats, and the struggl e was over. He thou g ht the spanking took only minutes and that he swatted her maybe ten times

. He said he ha d grown up with the thre e - lick s , no - moving rule. He admitted he probably had “ fire ” i n his eyes during the incident

. H e said that wh en t heir
st r uggle ended, she wen t o ut and wat ched the debate with him. H er attitude was better

.6 Sharpe ’ s sis ter testified that she had never seen Sharpe punish D in appropriately while sh e lived with them. She confirmed that s he and Sha rpe had been raise d wit h the th ree - licks, no

- movin g r ule. S he did not like the photos of D ’ s bruises and agreed that she did not believe at this point in her life that Sha rpe administered an appr opriate form of discipline that night.
B urnet County Sheriff ’ s D eputy Brian Ri chey testifie d that he responded to the school ’ s October 20, 2016 report of abuse. He testifi ed that D ’ s injuries stood out and caused him to remember them five years later at the July 2021 trial. He testified that the pho t os in evide nce were in line wi th th e inju ri es he saw in 2 0 16

. He said he saw about seven bruises , some of which were consistent with marks from the belt rather than a buckle , which were consistent with ab out ten blows. He tes tified that D told him Sharpe hit her on the h ead with the buckl e , but h e did not see i nj uries on her head. He testified that her injuries were not in line w ith what an ordinary, prudent man would do to punish his child.
D epartment of Family and Protective S e rvices Investig ator Kri stin Cantu te stified that she sa w pho to graphs of D ’ s injuri e s, watched her interview at the child advocacy center, and interviewed Sharpe. S he t estified that D ’ s pinkie was sprained, not broken, and that the bruises were consi stent with blows from a belt. D had bruis es on her arm, back , lef t side, leg and thigh,

wr ist, and buttocks. She testified that it was not reasonable to have spanked D in this manner based on all of the actions that occurred prior. Licensed Professional Counselor Robert Henley testified regardin g what the child
to ld hi m during a session wit h h im

. It tracked her testimony at trial and , in many ways , Sharpe ’ s testimony regarding the outline of events , inclu ding that s he had an att itude and was mouthing off to Sharpe. He nley testified that he held two joint sessions with Sharpe and the child. S he7 wanted Sharpe to apologize and Sha rpe declined. Sharpe admitted strik ing her, but fe lt that h e acted appropriately , not excess ively, did not hurt her, and was within his right as a parent. Henley testif ied that cor poral p unish ment sho uld not be use d a fter fourth grade and definitely not between a father and maturing female. He nley agreed that Sharpe used other disciplinary tool s like removing phone priv ileges and that different and escalating mis behavio r can require diffe rent and esca lating discipl i ne
. He testified that le gally permissib le spa nking can sometimes uni ntentionally leave a bruise. He agreed that lying to police and staying at an older boy ’ s house without permission was venturing down a wron g path that needed inte rvention. Henley testi f ie d that the incident was not a spa nking and was not reasonable or appropriate. Sharpe op ined that his sister was reasonable and said that the sheriff ’ s detective, Henley, Richey , and Cantu seeme d reasonable. But he testified t ha t, even tho ugh they deeme d
t he level of force he us ed on his daughter unreasonable , he believed it was reasonable. He testified that he regre tted spanking his daughter that evening “ because of all of the interfere nce from these people . If that hadn ’ t h appe ned, she ’ d be

— she might ha ve learned what I was t rying
to teach h er that

— and when they got a hold of her, you know, th ey ’ re all telling her she ’ s a victim of a crim e, she ’ s abused and it ’ s all a bunch of

— ” at which ti me his attorney int errupted him. H e fi nished by testif ying that h e wa s trying to discipline his daughter , to change her behavior because her b ehavior was escala ting and getting out of hand and an intervention had
to happen.

I. Sharpe has not show n char ge error. When reviewin g jury charge er rors , we firs t determine wheth e r er ror exists and then, if there is error, whether the error requires reversal

. Almanza v. State , 686 S.W.2d 157, 1718 (Tex. Crim. App. 1984) (op. on reh ’ g )

. The degree of harm nec essary to require reversal depends on whether a ppellant t imely objected at trial. M arsha ll v. State , 479 S.W.3d 840, 843 (Tex. Crim. App. 2016). If the appellant objected timely at trial, reversal is required upon a showin g of some har m to the a ppellant ; without a timely objection, reversa l is only required

u

pon a showing of egregious harm. Id

. When the issue was preserved by a timely request made during the charge conference, we must reverse if the charge error caused “ so me harm. ” Jo rdan v. State , 593 S.W.3d 340, 346 (Tex. Crim. App. 202 0). “ ‘ Som e harm ’ m e ans a ctual harm and not mer ely

a theoretical complaint, ” and we will reverse “ if the error was calculated to injure the rights of the defendant. ” Id . at 347. In evalu ating the ext e nt of the harm, w e review the entire record assessing: the jury charge in its entirety; all of the ev idenc e including the contested issues and the weight of the probative evidence; counsels ’ statements during voir dire and at trial; and any o ther pertinen t information in t he record. Id

. If the defendant fa il ed to make a timely o bjection to the charge at the trial court, we will reverse only if the error was so egregious that it deprived the defendant of a fair trial. Ngo v. State , 175 S.W.3d 738, 743 (Tex. Crim. App. 2005)

. “ A jury charg e which omits an essential ele ment of th e offense as alleged in the indictment is fundamentally defe ctive

. ” Markham v. State , 635 S.W.2d 153, 154 (Tex. App.

— San Antonio 1982, no writ). Although our review is not limited to a part of the ch arge standing a lone, “ the cruci al part of the charge in determining the existence of fundamental error is that part wher e the law is applied to the facts. ” Hanks v. State , 625 S.W.2d 433, 435 (Tex. App.

— Houston [14th Dist.] 1981, no writ). When determini ng whether a de fensive instruct ion should hav e been pro v ided, appell ate courts view the evidenc e in the light most favor able to the defe ndant ’ s requested instruction. Bufkin v. State ,9 207 S.W.3d 779, 782 (Tex. Crim. App. 2006). In general, a defendant is entitled to a jury instruction on a defensiv e issue if the defensive issue is raised by the ev idence, regardless of the strength or cre dibility of that evidence. Farmer v. State , 411 S.W.3d 901, 906 (Tex. Crim. App. 2013); see also Granger v. State , 3 S. W.3d 36, 38 (Te x. Crim. App. 199 9)

. However, an instru c tion is not r equired if the evi dence does not establish the defen se. Williams v. State , Nos. 03

- 14

- 00228

— 00229

- CR, 2016 WL 370019, at *4 (Tex. App.

— Austin Jan. 27, 2016,

no pet.) (mem. op., not desig nated for publi cation). Jury

- c harge error is considered egregiously harmful if it affects the very basis of the ca se, d eprives the defendant of a valuable right, or vitally affects a defensive theory. State

v. Ambrose , 487 S.W.3d 587, 597 (Tex. Crim. Ap p. 2016). In ass essing whether egregious harm exists, we consider th e entire jury charge; the state of the evidence , inc luding contested issues and the weight of the probative evidence; counsel ’ s arguments; and any other r elevant information revealed by t he entire trial r ecord. Id . at 598; Almanza , 6 86 S.W.2d a t 171.

“ Eg regious harm is a ‘ high and difficult standard ’ to m eet, and such a determination must be

‘ borne out by the trial record. ’ ” Villarreal v. State , 453 S.W.3d 429, 433 (Tex. Crim. App. 2015 ) (quoting R eeves v. State , 420 S.W.3d 812, 816 (Tex. Cri m . App. 2013 )).
A. The law and record d o not support reversa l for the absence of a n instruction on the Family Code ’ s p ermission of corp oral punishment . By his first issue, S harpe contends that the tr ial cour t erre d by failing to in struct the jury o n pr ovisi o n s of Texa s law for wh ich no i nstruction was requested

. The trial court instructed the jury in the application secti on that “ [t] he use of force , but not deadly forc e, ag ainst a child younger than eighteen years is j ustifi ed if t he actor is the c hild ’ s par e nt and when and to10 the degree the actor reasonably believes the force is necessary to disci pline the child. ” The co urt further instructed the jury :
Therefore, if you find that the defendant, Je rry Sharpe , did com mit assault b odily injury, but you furth e r find, or have a reasonable d oubt thereof, that the defendant was the parent of [D] and the force was used when and to the degree the defendant reasonabl y believed the force was necessary to disc ipline [D], you wil l find the de f endant not guilt y.

Consis t ent with the Penal Code, t hese instructions inform ed the jury that Sharpe was permitted to

use force he reasonably believed was necessary to discipl ine his daughter

. See Tex. Penal Code § 9.61(a)

. Sharpe as serts th at the trial court should ha ve instructe d the jury on the following issues:

• u nder t he Family Code , a parent has the duty of care, control , protection, and reasonable discipline of the child. See Tex. Fam . Code § 15 1.00 1 (a) (2) ;

• Parents are among the limit ed group of persons who may us e corpo r al punishment for the reasonable discip line of the child. Id. § 151.001 (e) (1 ) ; and

• “ A state agency may not adopt rules or policies or take any other action that v iolates the fundamental right and duty of a par ent t o direct the upbrin ging of the parent ’ s c hild. ” Id. § 151.003.
Sharpe c oncedes that he did not request an instruction on the Family Code sections. A trial judge has no duty to instruct the jury sua s ponte on unrequested defensive is sues because an unr e quested defensive issue is no t the law “ applicable to the case. ” Vega v. State , 394 S.W.3d 514, 519 (Tex. Crim. App. 2013) ; see Tex. Code Crim. Proc . art. 36.14. A defendant cannot complain on appeal a bout the trial judge ’ s failure to include a defe nsiv e11 instruction that he did not preserve b y request or objection: he has procedurally defaulted any such complaint. Vega , 394 S.W.3d at 519.
T he trial court did not err by failing to sua sponte instruct the jury on the se Family Code sections. The Court of Crimin al Appe a ls has couns el ed against using instructions based on

non - P enal Code statutes :
[ G] enerally speakin g, ne ither the defendant nor the State is entitled to a special jury instruction relating to a statutory offense or defe nse if that instruct i on (1) is not gro unded in the P enal Code, (2) is covered by the ge neral charge to the jury, and (3) focuses the jur y ’ s a ttention on a specific type of evidence that may support an element of an offense or a defense. In such a case, th e non - statutory instr uction would cons titute a prohi bited comm e nt on the weight of the evidence.

Walters v. State , 247 S.W.3d 204, 2 12 (T ex. Crim. App. 2007) ; see also Kirsch v. State , 35 7 S.W.3d 6 45, 651 (Tex. Crim. App. 2012). The pro hibition of st ate agenc ies adopt ing r ules or policie s or tak ing acti on s that

v i olate the fundamental right and duty of a parent to direct the upbringi ng of the parent ’ s child in Texas Family Code Section 151.003 is not relevant to the offense here

. The Texas Penal Code and its assault statut e were adopt ed by the Legi slatu re , not a s ta te agency

. T here is no evidence or argument that any state agency wa s pre sent or involved when Sharpe struck his chil d with a belt

. Whether Sharpe believes that a state agency later overs te pped its boundaries a n d interfered

w ith his parent al duties in response to th is incid ent is irrelevant to whether he committed a crimi nal o ffense in violation of the Texas Penal Code on October 19, 2016

. The trial c ourt was not obligated to instruct the jury on Section 151.00 3. The trial court was not requ ired to in s truct the jury that T e xas Family Code Section 15 1.00 1 (a)(2) provides tha t parent s ha ve the duty to reasonabl y discipline their child and12 that Texas Family Code Section 1 51.001 (e) (1 ) includes parents among the group who can use corporal punishmen t to disci p line children

. The trial court correctly instruct ed the jury that parents can justifiably use non - dea dly f orce to discipline their children to the degree the parent reasonably believes the f orce is necessary to di sci pline the child co nsistent w ith Texas P enal Code Section 9.61( a )

. Sharpe does not persuade us by authority or ar gument that the trial court erred by instru cti ng the jury , consistent with the Texas Penal Code , that he was justifie d to discipline h is dau ght er with force he reasonably believed w a s ne cessary but not that , under the Family Code, he h ad the general duty to disc ipline his daughter an d tha t as a par ent he could us e corporal punishment. His duty and the hypothetical use o f corporal punishment w ere not at issue; w hether he ex ceeded t he perm issible bounds of the law w as at is sue and proper ly
prese nted by the instructions given. The r easonableness o f Sh arpe ’ s action was the central contested issue. We find no error in th e court ’ s instruction. E ven if the omission were error , it is not eg regious in light of the evidence admitt ed , the ch arge given , and the arguments made

. We over rule issue one.
B. The law and record d o not show the trial court erre d by declining to give the re quested instructions on spanking and family viol ence. By his se c on d issue, Sharpe contends that the trial court err ed by declining t o inst ruct the jury as he reques ted that “ [t]he fact that a child is spanked on its own does not evidence family violence

. ” The requested language is an excerpt from the condi t ional grant of a

w ri t of mandamus requiring a trial court t o withdraw a p ro tective order against a father in a n underl ying divorce ca se. See In re Wean , No. 03

- 10

- 00383

- CV, 2010 WL 3431708, at * 5 (Tex. App.

— Austin Aug. 31, 2010 , or ig. proceeding )

. Later in the same parag r ap h, t he Wean court

wr o te that, “ for corporal punis hment to constitut e family violence, there must b e some13 evidence

— su ch as severity of injury, type of instrument used, or mental or e motion al state of the perpetrat or

— that would transcend a reasonable leve l o f parental discretion regarding discipline. ” Id

. T he photographs i n that case did not show bru is ing , id. , the e vidence consistently showe d that the father spanked the children ’ s buttock s only , id. at *7, and th e mother testified that the father never l os t his temper when spanking , id . The mother testi fied, howe ver, that his spankings always left a m ark or w elt. I d.
I n the charge conference , Sharpe ’ s attorney also requested the followin g language: “ Infrequent spankings of a child th a t leave marks or v is ible bruises 24 hours after spanking do not const itute sufficient evide nce to demonstrate that a p arent engaged i n conduct that endangered a child ’ s physical or emotional well

- being. ” Se e In re A.S. , 261 S.W.3d 76, 88 (Tex. App.

— Houst o n [14th Dist.] 20 0 8, pet. denied)

. The requested language is an excer pt from an opinion reversing a trial court ’ s judgment ba sed on a conclu sion that a fat h er ’ s spanking a child endangered the child ’ s physical or e motion al well

- being. See id. at 87

- 88 ; s ee also Tex. Fam. Code § 1 61 .001(1) ( E)

. The court found that evidence that t he spanking of a child who wet his pants that did not leave a ma rk and for which no criminal complaint was filed did not qualify as endang erment under Section 161. 001(1) ( E)

. A.S

. , 261 S.W. 3d at 88. Sharp e c ontends that , had the trial court given his reque sted instruct ion s , the jury could have easily con cluded that som e spanking is not evidence of family violence and thus that
t he re was no a ssault as charged. He co ntends that the instruction would have au t ho rized an acquittal because the instruction would say that an offense did not occur. Sh a rpe ’ s arg ume nt fails on several counts. As set out above, t he Court of Crimin al Appe als has couns el ed against i nstructions t hat are not gro u nded in the Penal Code, a r e covered by the general charge to the jury, and focus the jury ’ s attention on a specific type of14 evidence that m ay support an element of an offense or a defense. Kirsch , 35 7 S.W.3d at 6 51 ; Walters , 247 S.W.3d at 212

. Foremost, t he proposed instruction s are not warranted because they do not track the l aw applicabl e to this case

. The requested instru ctions are lang uage from civi l

case s based on the Fam ily Code standards for protective or der s and endangerment stand ards rather tha n the Penal Code

. A.S. , 2 6 1 S.W. 3d at 88 ; Wean , 2010 WL 3431708, at * 5; c om pare T ex. Fam. Code §§ 85.001(a) (protective orde r ju stified if family violence has occurred and is likely to occur again) & 161.001(1)( E) ( engaging in conduct or kn ow ingly placing the child with persons wh o engaged in conduct which endangers the physical or emotional well

- being of the child supports par ental

- rights te rmination) with Tex. Penal Code § 2 2 .0 1(a)(1) ( assault occurs when person in tentionally, knowingly, o r recklessly ca u ses bodily injury to anot h er ). The Legislature selectively imports Family Code concepts into the criminal law

. T he Code of Criminal Proce dure adopts the Family Code ’ s definition of family violence when aut horizi ng a finding of family viol ence. See Tex. Code Crim. Proc. art. 42. 0 13 (adopting Tex. Fam. Code § 71.0 04)

. T he P ena l Code imp orts S e ction 71.004 ’ s definition of fam ily violence in describing offenses and defenses

. See Penal Code § § 22.04(l)(2)(B )( i ) ( d efense to the offense of inj ury to a child, elderly individual, or di s abled i ndividual ), 21.007(f)(2) (terroristic thr eat)

. These adoptions make t he Legislature ’ s cho ice not to adop t Family Code s ection s 85.001(a) and 161.001(1)( E) s tandards for protectiv e order s and rights terminat ion into the as s ault offense and the pare n tal

- discipline force justi fication speak even lo ud er
. See Tex. Pen al Code § § 9.61(a) (parent a l d iscipline force justification) , 22.01(a) (assault). Whether a spanking can support a fin ding of the offense of assau lt with bodily i njury and family violence should not be assessed on instructions based on inapposite Family Code con cepts

.15 Further, the con cept that a “ sp anking without more ”

— i.e., one that does not reach the level of force that overcomes the parent

- child for ce justifica t ion

— would support acquitt a l is addressed appropriately by the instructions given. In the charge given, t he court defined f amily violence fo r the jury as follows:
The following offenses, when committed against a nother with whom a person ha s a family, hou s ehold, or dating relation s hip, are family violence: murder, capital murde r, manslaughter; criminally negligent homicide; a ssault; sexu al assault; aggravated assault; aggravated sexual assault; injury to a child , elderly individual or disab led individual; abandoning or endangering a child; deadly conduct; terroristic threat; a id ing suicide; tampering with a consumer product; l eaving a child in a vehicle; harassment by a pe rson in certain correctional facilities; h arassment o f a public servan t; kidnapping; a ggravated kidnapping; ind e cen cy with a child; and continuous violence agai nst the family.

This definition is a list of Pen al Code offense s tha t can support a family

- violence finding

. A fam ily

- violence finding i n this case must be based on a spanking th a t is an assault

— the only

o f fense on the list charged in this case. The cou rt d efined Assault Causing Bodily Injury

— Family V iolence as foll ows: “ A person commits [an] offense if the person intentionally , knowing ly , or recklessly causes bodil y injury to an o ther with whom the p erson h as a family, household, or dating relationship

. ” Tex. Penal Code § 22.01(a ) (1) (assault) ; se e al so Tex. C ode
Cr im. Proc. art. 42.013 (family

- violence finding 1 )

. B od ily In jury was defin ed in the charge as

1 The Co de of Criminal Procedure provides that , “ if the court determines that the offense involved family violence, as defined by Section 71.004, Family Code, th e court shall make an affi rmative find ing of that f act and ent e r the affirmative finding i n the judgment of the case

. ” Tex. Code Crim. Proc . art. 42.013. The Family Code defines “ family violen ce ” as: (1) an act by a member of a family or household against ano ther member of the family or household that is int e nded t o result in physical harm, b odily injury, assault, or sexual assault or that is a threat that reasonably places the member in fear of imminent16 “ Physica l pain , illnes s , or any impairment of phy s ical condition. ” Tex. Penal Code § 1.07(a) (8).
T he cou rt applied the definitions when chargin g the jury that “ if you f ind from the evidence b eyond a reasonable dou bt that [Shar pe] did then and there intentionally, knowin gly, o r recklessly cause bodily i n jury to [D], a member of his family or household, then y ou will find the defendant guilty a s charge d. ” T h is charge was followed by the defensive charge discussed above

on the ju stification for a parent ’ s u se of a degree o f forc e reaso nably believed neces s ary to discipline the child. To the extent that a “ span king without more ” means that the parent did not exceed the perm issi ble bounds of the justified force, the jury was instructed on that iss ue , and the omission of Shar pe ’ s r e quested inst ructions was n e ither e rror nor harmful. Sharpe ’ s argument for the “ span king without more ” instruction c lashes with the
C ourt of Crimina l Appeals ’ s admonition that instructi on s must not comment on the weight of the evidence or focus the j ury ’ s a ttention on a specific typ e of evi dence that may support an element of an offense o r a defense. See Walters , 247 S.W.3d at 212

. T h e requested ins truction focuses the jury on whether the evidence is something “ more ” than a spanking without defining what

“ more ” is sufficient to sho w family violen ce. T hat instruction and the instruction that spankings that do not leave a bruise lasting mor e than a day ar e not supported by the evidence in the record.

physical harm, bodily injury, assault, or sexual ass ault , but does not include def ensive measu res to prote c t ones e lf; (2) ab use, as that term i s defined by Sections 261.001(1)(C), (E), (G), (H), (I), (J), (K), and (M), by a member of a family or household toward a child of the family or household; or (3) dating viole nce, as that term is defin ed by Sectio n 71.0021.
T ex. Fa m . Code § 71.004.17 The trial court did not err by concluding that Shar pe was not entitled to the
reques t ed instruct ion s, and Sharpe was not harmed by their o missio n
. We ov errule issue two.

II. The evidence is suffic ient to support the judgment . Sharpe contends that the State failed to overcome the justification for his use o f forc e in disciplining D. E vide n ce is suffi cient to support a conviction when, after conside ring all of the evidence in the light most favora ble to the pros ecution, a reviewing court concludes that any rational trier of fact c ould have fou nd the essentia l elem e nts of the offe nse beyond a reasonable doubt. Hernandez v. State , 556 S.W.3d 308, 315 (Tex. Crim. App. 2017) ; McCall

v. State , 635 S.W. 3d 261, 272 (Te x. App.

— Austin 2021 , pet. ref ’ d )

. The trier of fact is the sole judge of the weight and credibili ty of t he evidence. S ee Zuniga v. State , 551 S.W.3d 729, 733 (Tex. Crim. App. 2018); Blea v. S tate , 483 S.W.3d 29, 33 (Tex. Crim. App. 2016); s ee also Tex.
Co de Crim. Proc. art 36.13 (explaining that “ the jury is the exclusive j udg e of the facts ” ). Thus, when p e rforming our r eview, we ma y not re

- eva luate the weight and credibility of the evidence or substitute our judgment for that of the factfi nder. Arroyo v . State , 559 S.W.3d 484, 487 (Tex. Crim. App. 2018 ) ; see also Montgome ry v. State , 369 S.W.3d 188, 192 ( T ex. Crim. App. 2012).
Ins t ead, we mus t defer to the credibility and weight determinati ons of the factfinder. Cary

v. State , 507 S.W.3d 750, 757 (Tex. Crim. App. 2016); Nowlin v. State , 473 S.W.3d 312, 317 (Tex. Crim. Ap p. 2015). When the record s upport s confli cting reasonable in f erences, we
presume that the factfinder resolved the conflic ts in favor of the verdict, and we defer to that resolution. Zu niga , 551 S.W.3d at 733; Cary , 507 S.W.3d at 757. Ultimately, we must

“ determine whether the nece ssary i nferences are reasonable b a sed upon th e combin ed and cumulative force of all the eviden ce when viewed in the light most favorable to the verdict. ”18 Mur ray v. State , 457 S.W.3d 446, 448 (Tex. Crim. App. 2015) (quoting Clay ton v. State , 235 S.W.3d 772 , 778 ( Tex. Crim. App. 2007) ); ac c ord Arroyo , 559 S .W .3d at 487. The essential elements of the offense are those as defined by the hypothetical ly correct jury charge for the case. Hernandez , 556 S.W .3d at 315. A hypothetically correct jury charge reflect s the g overning law, the indictme n t, the Stat e ’ s burde n of proof and theories of liability, an d an adequate description of the offense for the particular case

. Id

. It includes the statutory elements of the o ffense as modified by the indictment. See id

. at 312

– 13; Johnson

v. State , 364 S .W.3d 292, 294 (Tex. Crim. App. 2012). The relevant element s here are whether (1) Sharpe intentionally, know ingly, or reckl essly (2) caused bodily injury to D, a member o f his family or househo ld

. See T ex. Penal Code § 2 2.01(a ) (1) ; McCall , 635 S.W.3d at 272

. W e mu st also consider whether there is reasonable doub t concerning the parental

- discip line force justi f ication under T exas Penal Code Section 9.61. “ The use of force under s ection 9.61 is not justified simply becaus e of a parent ’ s subjective belief that the fo rce is necessary; rather, the use of force is jus tified only if a reasonable person would have be l ieved the force was ne cessary to discipline the child or to safeguard o r promote the child ’ s welfare. ” Quattrocc hi v. S tate , 173 S.W.3d 120, 122 ( Tex. App.

— F o rt Worth 2005 , pet. ref ’ d ) (quoting Assiter v. S tate , 58 S.W.3d 743, 748 (Tex. App.

— Amarillo 2000 , no pet.) ). T he “ re asonable belief ” standard is an objective standard

. Id .; see al so T ex. P enal C ode A nn . § 1. 07(a)( 4 2) (d efining “ reasonable b e lief ” as th at held by “ an ordinary and prudent man in the sa me circumstances as the actor ” ). The jury may infer consciousness of guilt from an accused directing the v ictim n ot to tell anyone wh at h appened between them. L ightse y v. State , No. 03

- 19

- 00136

- CR, 2021 WL 1182406, at *6 (Tex. App.

— Austin Mar. 30, 2021 , pet . ref ’ d )

.19 S ufficient evidence support ed the jury ’ s finding of guilt. T he re was ample evidence about the b ackground c onflict betwee n Sharpe and D and the acute confl i ct on October 19, 2016. D had been dishonest , disobeye d Sharpe , and b een “ snotty ” to him . Ther e

was conflicting evidence on the details of how the con frontation played out, the number of times Sharpe hit her , and whethe r he hit her with a buckle. But t h ere wa s no dispute that Sh a rpe spanked his daughter wit h a belt at lea st ten times, and D testified that he struck her as many as forty times. More critically, t he jury saw the effect of the blows he struck in the pictur es of her br

uise s
. D testif ied th a t Sharpe told her not to t e ll anyone what had happened, from which the jury cou ld infer Sharpe ’ s consciousness of guil t

. The jury heard DFPS investigator Cantu testif y that the spanking was “ not reasonable , ” Deputy Riche y testif y th at D ’ s injuries were n o t in line with what an ord i nary, prudent man would do to punish his child , I n vestigator Sievers te s tify that the photos of D ’ s in j u r ies d id no t look like the results of an appropriate discipli nary action by a parent again st a 15

- year - old girl, couns elor H e nley testify that “ [t]his w asn ’ t a spanking and , no, it was not [reasonable and appropriate ] , ” Sharpe ’ s sist er t esti fy that she did not believ e that the discipline Sharpe administered was an a ppropriate form , and D t estif y that she w as on bed rest
f or a w e ek and that the bruises la s t ed more than a month

. The jury also he ard Sharpe testif y that , despite all of the other adult witnesses testify in g that the level of force he us ed on D was

unreaso nable , he belie ved it was rea sonable. Th ey heard him tes tif y t h at he regretted spanking
h i s daughter that evening , not because of the force he used and the in juries he inflicted , but because of all of the interfere nce from these people with D l earning a l esson
. T he jur y could have c onsidered al l of the evidence , reso l ved conflicts, made

reason a ble inference s, and reached the verdict it did. Legally sufficient evidence supports the jud gment

. W e overrule i ssue three.20 CONCLUSION Finding no merit to the i ssue s Sharpe ra ises on ap peal , we affirm the trial

cou rt ’ s j udgme n t.

______________________ _

____________ _______ Darlene Byrne , Chief Justice Befo re C hief Justic e Byrne, Justi ces Kelly a n d Smith
Affirm ed Filed: August 31, 2022 Do Not Pub l ish