ANNADURAI NARASIMHA, Appellant v. THE STATE OF TEXAS, Appellee
Appellant Annadurai Narasimha pleaded not guilty to violation of a protective order. A jury convicted him, and the trial court sentenced him to 180 days confinement, probated for eighteen months, with additional community supervision provisions. In a single issue, appellant argues the trial court erred by instructing the jury that it must find the protective order was issued pursuant to chapter 85 of the family code, and the improper instruction was structural error or, in the alternative, resulted in egregious harm under Almanza. We affirm the trial court's judgment.
On March 30, 2012, the trial court issued a temporary protective order that, among other things, prohibited appellant from communicating with his wife directly or indirectly, “in ANY manner or form ․ except through the party's attorney, or person appointed by the Court” because “family violence, as defined by Section 71.004, Family Code, has occurred and is likely to occur in the future.” The protective order did not specifically cite chapter 85 of the family code, which provides that after a hearing the court shall find whether family violence has occurred or is likely to occur in the future, but the order tracked the statutory language. See TEX. FAM. CODE ANN. § 85.001(a) (West 2014). The protective order was effective immediately and put in place for eighteen months. The order was served on appellant in open court.
On October 4, 2012, Officer Eric Withrow with the Sherman Police Department, responded to a call and met appellant's wife in the station lobby. She provided Officer Withrow a copy of the protective order. She told Officer Withrow appellant called her on September 23, 2012. She showed Officer Withrow her cellphone call log, which listed “Avi” and a number. The call log indicated complainant called “Avi” back 1 and then she received another call from “Avi” that she did not answer. Officer Withrow testified “Avi” and appellant were the same person.
Complainant later provided her call log from AT&T. After collecting that evidence and taking complainant's statement, Officer Withrow called the number assigned to “Avi.” Officer Withrow asked to speak to appellant and appellant answered, “Speaking.” Officer Withrow had no doubt he was speaking to appellant when he called the number from complainant's cellphone and AT&T call logs.
Officer Withrow told appellant he was calling in reference to a protective order, and appellant acknowledged the existence of an order. Appellant also acknowledged that he was not to have any contact whatsoever with complainant. Officer Withrow testified it was “fairly clear during our discussion” that appellant knew he violated the order by calling complainant. In fact, appellant admitted at the beginning of the conversation that he had already called his attorney about making the phone call. Appellant explained he made the call because his mother was dying, and she wanted an explanation as to why complainant was trying to take his children away.
Officer Withrow recorded his conversation with appellant, and appellant provided a voice exemplar by reading the following partial written transcript of his side of the conversation before the jury:
My mom wanted to know why she's taking the kids away from me. So when I phone her for less than a minute, she just told me that the Court has decided that it's done. And we should not break the rules. And that was it. That was about it, sorry. Nothing more than that.
When the State asked Officer Withrow if appellant's voice in court matched the voice in the recording, he answered, “Yes.” Appellant's phone records also corroborated he called complainant on September 23.
The State introduced the protective order into evidence and asked the court to take judicial notice that it was issued pursuant to chapter 85 of the family code. Appellant's counsel did not object, and the court took judicial notice of the order.
During the charge conference, the State reminded the court it took judicial notice of the order and asked that be “reflected somewhere in the charge.” The court agreed to include the following instruction under the “Definitions and Special Instructions:” ․ “You are instructed that the protective order relevant to this case was issued under Chapter 85 of the Texas Family Code.” Again, appellant's counsel made no objection.
The jury was further instructed to find appellant guilty if the State proved beyond a reasonable doubt that appellant (1) knowingly or intentionally violated the terms of an order under chapter 85 of the family code; (2) knowingly or intentionally communicated with complainant by calling her on the phone; and (3) the order prohibited any communication with complainant. The jury found appellant guilty of violating the protective order. The trial court sentenced him to 180 days confinement, probated for eighteen months, with additional community supervision provisions. This appeal followed.
In a single issue, appellant challenges the trial court's instruction requiring the jury to find the protective order was issued pursuant to chapter 85 because that finding was an essential element of the case that the State was required to prove beyond a reasonable doubt. Appellant argues that by instructing the jury that the “protective order relevant to this case was issued under Chapter 85 of the Texas Family Code,” the court commented on the weight of the evidence, alleviated the State of its burden of proof, and violated appellant's Sixth Amendment right to a trial by jury, thereby committing structural error that requires reversal without a harm analysis. In the alternative, appellant claims he suffered egregious harm under Almanza.
The State responds the trial court's failure to include a rule of evidence 201(f) limiting instruction in the charge neither resulted in structural error nor caused appellant egregious harm.
We first note appellant has not denied that a chapter 85 protective order is a fact that can be judicially noticed. See TEX. R. EVID. 201(b) (explaining a court may judicially notice a fact that is not subject to reasonable dispute). In fact, the record indicates appellant's counsel agreed to judicial notice of the protective order without objection. Moreover, appellant and the State agree the trial court's instruction was erroneous because when a trial court takes judicial notice, rule 201 requires the court to instruct the jury that “it may or may not accept the noticed fact as conclusive.” TEX. R. EVID. 201(f). This it failed to do. The parties, however, disagree as to the type of error and the required harm analysis. Accordingly, our analysis turns to whether the error is structural and requires reversal without a showing of harm or is subject to an Almanza egregious harm review. See Allen v. State, 253 S.W.3d 260, 263 (Tex. Crim. App. 2008) (unobjected-to jury charge error will not result in reversal of a conviction in the absence of egregious harm).
The Texas Court of Criminal Appeals has held that all errors, with the exception of certain federal constitutional errors labeled as “structural,” are subject to a harm analysis. Cain v. State, 947 S.W.2d 262, 264 (Tex. Crim. App. 1997). “A structural error affect[s] the framework within which the trial proceeds, rather than simply an error in the trial itself.” Jordan v. State, 256 S.W.3d 286, 290 (Tex. Crim. App. 2008). All structural errors must be founded on a violation of a federal constitutional right, but not all violations of federal constitutional rights amount to structural errors. United States v. Davila, 133 S. Ct. 2139, 2149 (2013); Lawrence v. State, No. 05-13-01138-CR, 2015 WL 1542134, at *13 (Tex. App.—Dallas April 2, 2015, no pet.) (mem. op., not designated for publication). In Davila, the Court explained that structural error is a very limited class of errors that triggers an automatic reversal. These errors include denial of counsel, denial of self-representation, denial of a public trial, and the failure to convey to a jury that guilt must be proved beyond a reasonable doubt. Davila, 133 S. Ct. at 2149. These types of errors “infect the entire trial process” and “necessarily render a trial fundamentally unfair.” Neder v. United States, 527 U.S. 1, 8 (1999). However, most constitutional errors are not structural. Mendez v. State, 138 S.W.3d 334, 340 (Tex. Crim. App. 2004).
Appellant argues his right to a jury trial was completely eliminated when the trial court instructed the jury on an element of the charged offense, which necessarily instructed it to ignore the State's burden of proof. Appellant relies on portions of Justice Scalia's dissenting opinion in Neder v. United States to support his position. Neder, 527 U.S. at 33 (Scalia, J., dissenting) (“The Court reaffirms the rule that it would be structural error ․ to ‘vitiate all the jury's findings. ․ The question this raises is why, if denying the right to conviction by jury is structural error, taking one of the elements of the crime away from the jury should be treated differently from taking all of them away—since failure to prove one, no less than failure to prove all, utterly prevents conviction.”). However, as an intermediate appellate court, we must follow precedent enunciated by the United States Supreme Court. See Erlandson v. State, 763 S.W.2d 845, 852 (Tex. App.—Houston [14th Dist.] 1988, pet. ref'd). The majority in Neder concluded an erroneous jury instruction that omits an element of an offense is not structural error. Neder, 527 U.S. at 15 (“an instruction that omits an element of an offense does not necessarily render a criminal trial fundamentally unfair or an unreliable vehicle for determining guilt or innocence”); see Washington v. Recuenco, 548 U.S. 212, 222 (2006) (failure to submit an element to the jury is not structural error). Therefore, “[i]f omitting an element entirely from the jury charge is not structural error, it naturally follows that the failure to instruct the jury on the State's burden of proof regarding one element of an offense ․ is not structural error.” Olivas v. State, 202 S.W.3d 137, 143 (Tex. Crim. App. 2006). Here, the charge did not omit an element of the offense but rather it failed to explain the State's burden of proof, through a limiting instruction, as to one element Such error is not structural. See id.
Further, appellant has not cited this Court to any authority in which the omission of a rule 201(f) instruction has been held to be structural error and we have found none. Rather, case law indicates a trial court's failure to provide such an instruction is subject to Almanza review. See Lyle v. State, 418 S.W.3d 901, 905 (Tex. App.—Houston [14th Dist.] 2013, no pet.) (appellant's failure to object to the trial court's omission of a rule 201 instruction reviewed for egregious harm); see also Arriaga v. State, No. 03-14-00549-CR, 2016 WL 806709, at *1 (Tex. App.—Austin, Feb. 26, 2016, pet. ref'd) (mem. op., not designated for publication); Zinger v. State, 899 S.W.2d 423, 434 (Tex. App.—Austin 1995), rev'd on other grounds, 932 S.W.2d 511 (Tex. Crim. App. 1996).
Because we have concluded the error is not structural and appellant did not object to the trial court taking judicial notice of the protective order, we must conduct an egregious harm analysis. In examining the record for egregious harm, a reviewing court should consider the entire jury charge, the state of the evidence, including the contested issues and the weight of the probative evidence, the final arguments of the parties, and any other relevant information revealed by the trial record as a whole. Allen, 253 S.W.3d at 264. Jury charge error is egregiously harmful if it affects the very basis of the case, deprives the defendant of a valuable right, or vitally affects a defensive theory. Id.
We begin by examining the charge as a whole. The charge instructed the jury that nothing the judge said “should be considered by you as an opinion about the facts of this case or influence you to vote one way or the other.” It further instructed the jury the State must prove beyond a reasonable doubt three elements, the first of which included:
1. On or about September 23, 2012, in Grayson County, Texas, the defendant knowingly or intentionally violated the terms of an order issued under Chapter 85 of the Texas Family Code ․
The next section provided definitions and special instructions, which included the instruction that, “You are also instructed that the protective order relevant to this case was issued under Chapter 85 of the Texas Family Code.” The “Application of Law to Facts” immediately followed and stated again that the jury “must determine whether the State has proved, beyond a reasonable doubt, three elements” and applied the facts of the case to each element.
Although the charge repeatedly instructs the jury that the State must prove each element of its case beyond a reasonable doubt and the court properly instructed the jury on the elements required to prove a violation of a protective order, the court's failure to provide the rule 201(f) limiting instruction resulted in the court essentially telling the jury the first element was satisfied. Therefore, even though the error was surrounded by proper recitations of law, “[g]eneral instructions such as these, however, do not necessarily remedy or lessen the harm caused by instructing the jury to find a particular element of an offense.” Lyle, 418 S.W.3d at 906. As such, this factor weighs in favor of a finding of egregious harm.2
We now consider the state of the evidence, including contested issues. Appellant and the State agree the most contested issue at trial was the identity of the individual who called complainant's phone on September 23, 2012. In fact, appellant's defensive strategy was that the State did not prove appellant called complainant or alternatively, that his communication was not an intentional or knowing violation of the order. Thus, the contested issue at trial was not whether the protective order was issued pursuant to chapter 85 of the family code. And at no time did appellant attempt to challenge whether the protective order had been filed under the statutory authority alleged in the charging instrument. Rather, appellant's counsel stated he had no objection to the court judicially noticing that the order was issued pursuant to the family code. Thus, this weighs against a finding of egregious harm. See Lyle, 418 S.W.3d at 907 (omission of rule 201 instruction was not egregious harm when omitted fact was not subject of evidentiary conflict or controversy); Zinger, 899 S.W.2d at 434 (“Egregious harm is not shown where the omission in the charge concerns an incidental defensive theory or a defensive theory not raised by appellant.”).
As for the contested issues, Officer Withrow testified phone records indicated appellant made the call and in a recorded conversation, appellant admitted he made the call. Moreover, after appellant providing a voice exemplar, Officer Withrow testified appellant was the same individual he spoke to during the recorded conversation. Appellant also admitted he knew the order prohibited him from contacting complainant. The fact that the call was non-threatening and he quickly ended the conversation after complainant reminded him of the order did not negate evidence of his intentional and knowing violation of the order. Thus, evidence supporting his guilt was strong. See Neal v. State, 256 S.W.3d 264, 279 (Tex. Crim. App. 2008) (charge error did not result in egregious harm when evidence of defendant's guilt was overwhelming); Morgan v. State, No. 10-10-00367-CR, 2011 WL 4837721, at *11 (Tex. App.—Waco Oct. 12, 2011, no pet.) (mem. op., not designated for publication) (strong evidence supporting defendant's violation of protective order reduced harm from erroneous jury charge). This likewise weighs against a finding of egregious harm.
We next consider the parties' closing arguments. The State made no mention of whether the protective order was issued under chapter 85 of the family code in its opening closing argument. Instead, it stated, “Y'all's only job back there is to say did the State prove beyond a reasonable doubt that there is a protective order and that he violated it by communicating with her. And we have proven that beyond a reasonable doubt.”
The defense referenced the protective order throughout closing but never specifically argued the State had failed to satisfy the first element—that a protective order existed and that it was issued under chapter 85. Rather, counsel's arguments centered on whether the State had met its burden that appellant knowingly and intentionally communicated with complainant.
On rebuttal, the State made one specific reference to the first element:
Is it a Chapter 85 protective order? It is. It's in your instructions that it is. But what is required for a Chapter 85 protective order? The Court must find and the Court did find in this case when they had that hearing that family violence has occurred and is likely to occur in the future.
The closing continued for several more minutes without any further reference to the first element. Because both parties referred to the order in closing, the State did not emphasize the error in its closing, and both parties did not consider it a contested issue, this factor weighs against a finding of egregious harm.
Lastly, we do not find any other relevant information in the trial as a whole supporting a finding of egregious harm. Appellant argues the lack of facts supporting compliance with chapter 85 is important; however, to the extent appellant may be challenging the sufficiency of the evidence to support this element, he has neither concisely presented this issue for review nor supported the argument with relevant authority. See TEX. R. APP. P. 38.1(f), (1); see also Wyatt v. State, 23 S.W.3d 18, 23 n.5 (Tex. Crim. App. 2000) (“we will not make appellant's arguments for him” when he fails to make an argument supported by authority and citations to the record).
We conclude appellant did not suffer egregious harm by the trial court's failure to include a rule 201(f) limiting instruction. Appellant's issue is overruled.
The judgment of the trial court is affirmed.
1. Complainant told Officer Withrow she accidentally called him back.
2. The State agrees in its brief that “Although the error in the abstract portion of the charge was surrounded by proper recitations of the law and a proper application paragraph, which, along with the common sense of the jurors, likely minimized the impact of this error, this factor weighs in favor of a finding of egregious harm.”
DAVID L. BRIDGES JUSTICE